People v. Rodriguez , 632 N.Y.S.2d 978 ( 1995 )

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Starkey, J.), rendered March 15, 1993, convicting him of murder in the second degree, attempted murder in the second degree (three counts), assault in the first degree, criminal possession of a weapon in the second degree (two counts), and criminal possession of a weapon in the-fourth degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

For the same reasons as discussed in the companion case on appeal (People v Davis, 220 AD2d 682 [decided herewith]), the Supreme Court properly admitted the evidence of the prior attack on the People’s witness Alberto Vasquez, and his friend, the deceased Julio Hidalgo, since it showed that Vasquez had a prior opportunity to observe the defendant for the purpose of later identification (see, People v Jamerson, 119 AD2d 588; People v DeLeon, 177 AD2d 641, 642).

The defendant’s further contention that reversal is warranted due to error in the trial court’s charge is unpreserved for appellate review (see, CPL 470.05 [2]; People v Thomas, 50 NY2d 467; People v Udzinski, 146 AD2d 245, 250; People v Price, 144 AD2d 1013; People v Fisher, 112 AD2d 378; People v Thompson, 107 AD2d 772). In any event, we conclude that when viewed as a whole, the court’s charge properly conveyed the concept of reasonable doubt to the jury (see, People v Canty, 60 NY2d 830, 831-832; People v Fisher, 112 AD2d 378, supra; People v Dee, 106 AD2d 582; People v Price, 144 AD2d, supra, at 1014).

The sentence imposed was neither excessive nor harsh (see, People v Suitte, 90 AD2d 80).

The defendant’s remaining contentions are either unpreserved for appellate review or without merit. Altman, J. P., Hart, Friedmann and Krausman, JJ., concur.