People v. Mosley

Memorandum.

The order of the Appellate Division should be affirmed.

Although the memorandum of the Appellate Division majority incorrectly states that the jury was "instructed that, if the evidence were evenly balanced, the prosecution had not sustained its burden of proving each element of the crime beyond a reasonable doubt” (112 AD2d, at p 814), the claim that reversal is required because of the absence from the charge of an instruction that every element must be proved beyond a reasonable doubt was not preserved for our review, the objection having been limited to the confusing nature of the instruction by reason of its use of the words "evenly balanced” (see, People v Robinson, 36 NY2d 224). Although the latter phrase will in many cases be sufficiently confusing to require reversal, we agree with the Appellate Division majority that, under the circumstances of this case in which the only matter put in issue by defendant was identification, and in which the Trial Judge made clear that "the degree of proof necessary in a criminal case is far greater than the degree of proof necessary in a civil case” and that reasonable doubt "simply means a doubt for which you can point to the evidence, or lack of evidence, as to why you have that doubt”, the likelihood of confusion was not sufficient to require reversal.

The remaining claims of error either were not preserved or are without merit.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr., concur.

Order affirmed in a memorandum.