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THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. STEVEN CHESTNUT, Appellant.

Ordered that the judgment is affirmed.

When the trial court charged intentional murder and depraved indifference murder in the conjunctive rather than in the alternative, this was proper under the state of the law as it then existed. Although this charge was later declared to be error (People v. Gallagher, 69 N.Y.2d 525), we find it to have been harmless in this case, as the defendant was acquitted of intentional murder (see, People v. Thomas, 152 A.D.2d 612).

We find no error with the court's failure to charge that a key prosecution witness was an interested witness as a matter of law. The court properly instructed the jury as to how to determine whether or not witnesses were interested and how to evaluate their testimony (see, People v. Romero, 136 A.D.2d 659). We also find the court's charge sufficiently advised the jury as to the evaluation of identification testimony (see, People v. Whalen, 59 N.Y.2d 273; People v. Daniels, 88 A.D.2d 392).

The sentence imposed was not excessive. We have considered the defendant's remaining contentions, including those raised in his supplemental pro se brief, and find them to be without merit. Sullivan, J.P., Harwood, Balletta and Rosenblatt, JJ., concur.

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PEOPLE v. CHESTNUT
(Apr 2, 1990)