People v. Hattan

• Decision Date: 10 April 1989
• Citation: 149 A.D.2d 531,540 N.Y.S.2d 726
• Parties: The PEOPLE, etc., Respondent, v. Randell HATTAN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 726

540 N.Y.S.2d 726

149 A.D.2d 531

The PEOPLE, etc., Respondent, v. Randell HATTAN, Appellant.

Supreme Court of New York, Appellate Division,

Second Department.

April 10, 1989

Philip L. Weinstein, New York City (Amy Donner, of counsel), for appellant. John J. Santucci, Dist. Atty., Kew Gardens (Mark Osnowitz, of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Berkowitz, J.), rendered July 8, 1987, convicting him of criminal sale of a controlled substance in the third degree and criminal facilitation in the fourth degree, upon a jury verdict, and imposing sentence. ORDERED that the judgment is affirmed. The defendant's contention that the court failed to give the minimal charge on identification warranted by the evidence is not preserved for appellate review. Reviewing the contention in the exercise of our interest of justice jurisdiction, we agree that the charge should have stated that the People have the burden of proving identification beyond a reasonable doubt (see, People v. Whalen, 59 N.Y.2d 273, 464 N.Y.S.2d 454, 451 N.E.2d 212; People v. Perez, 140 A.D.2d 461, 527 N.Y.S.2d 872; People v. Knowell, 94 A.D.2d 255, 464 N.Y.S.2d 525). However, in light of the overwhelming evidence of the guilt of the defendant, we find the error harmless (see, People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787; People v. Grant, 132 A.D.2d 619, 517 N.Y.S.2d 774). We have reviewed the defendant's remaining contentions and find them to be either unpreserved for appellate review or without merit (see, People v. Mayas, 137 A.D.2d 836, 525 N.Y.S.2d 298; People v. Milom, 75 A.D.2d 68, 428 N.Y.S.2d 678; see also, People v. Kong, 131 A.D.2d 783, 517 N.Y.S.2d 71).

MOLLEN, P.J., and MANGANO, BROWN and HARWOOD, JJ., concur.