Opinion
December 23, 1994
Appeal from the Monroe County Court, Wisner, J.
Present — Denman, P.J., Green, Balio, Callahan and Boehm, JJ.
Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him, after a jury trial, of rape in the first degree and sexual misconduct. The trial court erred in permitting a prosecution witness to testify concerning her duties as a volunteer at a Rape Crisis Center. That witness was called to testify about receiving a phone call at her home from the complainant and alerting police that the complainant might be in trouble. Testimony concerning the witness' employment was irrelevant. Proof of defendant's guilt, however, was overwhelming, and the error is harmless (see, People v Crimmins, 36 N.Y.2d 230, 242).
The court improperly instructed the jury that, if it found that the evidence "reasonably permits a conclusion of either guilt or innocence, you should adopt a conclusion of innocence." Use of the so-called "two-inference" or "evenly balanced" instruction has been criticized by this Court because it suggests that the People may satisfy their burden of proof by less than the reasonable doubt standard (see, People v Cooper, 147 A.D.2d 926, lv denied 74 N.Y.2d 738; People v Jackson, 124 A.D.2d 975, 976, lv denied 69 N.Y.2d 746). Nevertheless, the instruction as a whole conveyed the accurate standard of proof to the jury, and reversal is not warranted (see, People v Clark, 190 A.D.2d 989, lv denied 81 N.Y.2d 968; People v Weatherspoon, 155 A.D.2d 888, lv denied 75 N.Y.2d 872; People v Hartle, 151 A.D.2d 1003, lv denied 74 N.Y.2d 810).