PEOPLE v. OSORIO

The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v. Bleakley, 69 N.Y.2d 490). There is no basis for disturbing the jury's determinations concerning identification. Defendant's guilt was established by the testimony of the victim, who recognized him as a person she had seen in her neighborhood on a regular basis for several years, and who identified him as the perpetrator three months later when she saw him on the street.

The court's identification charge was thorough, detailed and balanced, and provided the jury with adequate guidance concerning the factors to be taken into consideration in evaluating identification testimony (see People v. Gonzalez, 185 A.D.2d 857, 858-859, lv denied 80 N.Y.2d 1026).

Testimony regarding the effects of the crime on the victim's children, who were present during the incident, was highly relevant to the charge of endangering the welfare of a child (see Penal Law § 260.10), and was not unduly prejudicial.

As the People concede, defendant's conviction of burglary in the second degree should be dismissed as a lesser included offense of burglary in the first degree.

We have considered and rejected defendant's remaining claims.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.