The opinion
Memorandum. The order of the Appellate Division should be affirmed. The transit railroad station identification was unexceptionable because justified by the need to have cause to take defendant into custody. In view of the victim’s previous acquaintance with defendant’s appearance and her opportunity to identify defendant during the commission of the crime, the identification hearing court was warranted in finding a sufficient independent basis for the victim’s in-court identification of defendant.
The prosecution’s summation and the court’s charge were unfortunate in permitting the jury at points to infer that defendant had some sort of burden of proof. The court’s view of defendant’s guilt may also have been intimated. Overall it cannot be said, however, that the errors preserved for our review were prejudicial as a matter of law. The Appellate Division in its discretion with power to review the facts might well have concluded that a new trial would have been merited
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in the interests of justice. There was, however, neither singly nor in combination, such error of law as would entitle this court to reverse the conviction and order a new trial.
Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Rabin and Stevens concur.
Order affirmed in a memorandum.