MEMORANDUM.
The order of the Appellate Division should be affirmed.
Without more, in the circumstances revealed by this record we cannot say as a matter of law that the trial court abused its discretion when it denied the defendant's request for a lineup made at a time when, some five months after the initial identification, it is not disputed the defendant presented a somewhat altered appearance.
As to appellant's contention that, despite an otherwise unobjectionable charge on the burden of proof, the Trial Judge should have granted the request that the jury be instructed on circumstantial evidence, as we have only recently reiterated, a special instruction on that subject is required only when the prosecution's case rests on circumstantial evidence alone (People v Gerard, 50 N.Y.2d 392; People v Barnes, 50 N.Y.2d 375).
Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur in memorandum.
Order affirmed.