The People of the State of New York, Respondent, v. Steven Zambito, Appellant

The People of the State of New York, Respondent, v Steven Zambito, Appellant. (Appeal No. 1.) [MAJORITY] —Judgment unanimously affirmed, Memorandum: In this one-witness identification case, the victim’s testimony is not inherently incredible, hopelessly contradictory or irresponsible (cf. People v Reed, 40 NY2d 204; People u Ledwon, 153 NY 10). The victim was positive and unwavering in his identification of the defendant and, although his testimony may be suspect, the responsibility for determining his credibility rested with the jury (see People v Arroyo, 54 NY2d 567, 578; see, also, People v Vance, 89 AD 2d 347, 351). More troublesome is the patently erroneous reasonable doubt charge in which the trial court explained that “Now, the prosecution of course does not have to prove his case beyond a reasonable doubt.” This obvious misstatement was made only once during a charge that otherwise appropriately described the standard of proof and was proper. The error was apparently so innocuous in the context of the entire charge that it escaped the attention of trial counsel who did not object; if it had been objected to, the court undoubtedly would have corrected it. Under the circumstances the error is not of such magnitude as to warrant reversal in the interest of justice (see United States v Rosa, 493 F2d 1191, cert den 419 US 850; see, also, CPL 470.15, subd 6 par [a]). The remaining issues raised by the defendant have been examined and found to be without merit. (Appeal from judgment of Monroe County Court, Bergin, J. — attempted murder, second degree, and assault, first degree.) Present — Hancock, Jr., J. P., Callahan, Doerr, Boomer and Schnepp, JJ.