People v. Perez , 620 N.Y.S.2d 249 ( 1994 )

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Lipp, J.), rendered September 11, 1992, convicting him of burglary in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Contrary to the defendant’s contention, the court’s charge to the jury was adequate under the circumstances of this case since it clearly instructed the jury that identification had to be proven beyond a reasonable doubt and reiterated many times that the burden of proof was on the People (see, People v Thompson, 202 AD2d 454; People v Maxwell, 184 AD2d 661). Viewed in its entirety, the court’s charge made clear that the defendant bore no burden of proof (see, People v Coleman, 70 NY2d 817; People v Canty, 60 NY2d 830). The court’s statement to the jury that its function was to determine "where the truth lies”, taken in context, neither shifted the burden of proof to the defendant nor diluted the People’s burden of proof (see, People v Griffith, 200 AD2d 760; People v Moore, 185 AD2d 251; People v Jones, 173 AD2d 487).

Finally, the challenged comment in the prosecutor’s summation was a fair response to defense counsel’s summation (see, People v Arce, 42 NY2d 179; People v Griffith, 200 AD2d 760, supra). Copertino, J. P., Pizzuto, Santucci and Florio, JJ., concur.