People v. Staples

— Appeal by defendant from a judgment of the Supreme Court, Kings County (Starkey, J.), rendered March 11, 1982, convicting him of attempted robbery in the first degree, upon a jury verdict, and imposing sentence. U Judgment affirmed. 11 At trial, the victim made a positive identification of the defendant as the person who attempted to rob him at gunpoint on December 27, 1980. The defendant did not testify but presented four alibi witnesses. H Although the trial court’s charge to the jury was improper in that it instructed the jury to most carefully scrutinize the evidence relating to the alibi without giving a like charge with respect to identification (see People v Fludd, 68 AD2d 409 ; People v Reed, 83 AD2d 645 ; People v Costales, 87 AD2d 635 ; People v Cippola, 96 AD2d 1102 ), the error was not preserved for appellate review and it was, in any event, harmless in view of the overwhelming proof of guilt (see People v Crimmins, 36 NY2d 230 ). We note that the court did, in fact, give an “elaborate charge as to identification testimony [which] must have impressed upon the jury the need of carefully scrutinizing that testimony too” (People v Contes, 91 AD2d 562 , 563, affd 60 NY2d 620 ). We have reviewed defendant’s other contentions and find them to be without merit. Bracken, J. P., Weinstein, Brown and Niehoff, JJ., concur.