Not overruled or negatively treated on appealinfoCoverage
Appellate Division of the Supreme Court of New York, First DepartmentOct 11, 1990
166 A.D.2d 237 (N.Y. App. Div. 1990)
166 A.D.2d 237562 N.Y.S.2d 400

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October 11, 1990

Appeal from the Supreme Court, New York County (Joan Carey, J.).

On September 21, 1988, in the early morning hours, defendant approached complainant as he was walking home on West 125th Street and forcibly stole certain jewelry. Defendant was arrested a short while after the incident near the vicinity of the robbery and was unhesitatingly identified by the complainant.

On appeal defendant, who is black, maintains that the trial court erred in denying his request to instruct the jury that the "fact that defendant and the identification witness are of a different race is merely one of the factors that they may consider in determining the accuracy of the identification". A defendant is not deprived of a fair trial when the court declines a request for a cross-racial identification charge (People v Marshall, 160 A.D.2d 662 [see briefs on appeal]), especially where, as here, the court's general instructions, as a whole, conveyed the appropriate applicable legal principles (see, People v. Whalen, 59 N.Y.2d 273, 279).

Concur — Ross, J.P., Rosenberger, Asch, Kassal and Wallach, JJ.