Opinion
December 14, 1999
Judgment, Supreme Court, Bronx County (Steven Barrett, J.), rendered February 28, 1996, convicting defendant, after a jury trial, of manslaughter in the first degree, and sentencing him to a term of 5 to 15 years, unanimously affirmed.
Allen H. Saperstein for Respondent.
Jojo Annobil for Defendant-Appellant.
SULLIVAN, J.P., NARDELLI, WALLACH, SAXE, FRIEDMAN, JJ.
The verdict was based on legally sufficient evidence and was not against the weight of the evidence. We see no reason to disturb the jury's determinations concerning identification.
The court properly refused to instruct the jury to disregard an unexpected in-court identification of defendant by an eyewitness who had been unable to positively identify him at a lineup. A witness's failure to identify a defendant at a pretrial procedure goes to the weight of the witness's in-court identification, not to its admissibility (People v. Parks, 257 A.D.2d 636, lv denied 93 N.Y.2d 976; People v. Spigner, 202 A.D.2d 331, lv denied 83 N.Y.2d 915).
We perceive no abuse of discretion with respect to denial of youthful offender treatment.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.