Kassal and Smith, JJ., dissent in a memorandum by Smith, J., as follows: Because I believe the defendant was convicted by overwhelming evidence following a trial which was fair, I dissent. First, in the context of this case, the showup identification procedure at the hospital was neither an error nor unfair. Even if it was error, the error was harmless beyond a reasonable doubt. (People v Crimmins, 36 NY2d 230 [1975].) Second, the charge as a whole was entirely fair.
Briefly stated, the evidence was as follows. On April 3, 1984 the complainant, a 69-year old woman, was grabbed around her neck, stabbed twice in the chest and robbed of her pocket*188book as she attempted to enter her second floor apartment in the Bronx. While the complainant could not identify the defendant at trial, she did identify him in a hospital show-up shortly after the stabbing.
Around 1:30 in the afternoon on the same day, Special Agent Charles Engel and Detective Investigator John Murphy were in plain clothes in an unmarked car near Sherman Avenue and 166th Street. They observed the defendant running northbound on Sherman Avenue holding something under his jacket as though carrying a football. The man darted into the entranceway of a building and then came out immediately. He kept "looking back and forth from side to side.” (Engel) The officers followed the defendant. When they approached him, they noticed a strap hanging from his jacket. They drew their guns, believing the strap to be part of a holster. When the defendant was directed to approach the officers, he began to do so and then threw a handbag, the handbag of the complainant, at them. Although there was a struggle, the defendant broke away and the officers lost him after a chase.
Shortly after this occurrence, the officers learned of the stabbing of the 69 year old woman. They resumed their search for the defendant and found him crouching along the wall of a building and near a car. After a struggle and after additional police officers had arrived, the defendant was subdued. A knife and a jacket were found a short distance away.
The defendant was taken to Lincoln Hospital and shown to the complainant. At the hospital the defendant kept yelling that he was not the man. He also yelled that he did not mean to harm the woman. At first the complainant was unable to identify the defendant. When he was brought closer to her, she did identify him.
Two other people were brought to the hospital to view the defendant. One, Maximiliano Zayas, identified the defendant there. The other, Larry Holland, did not.
Under the circumstances of this case, it was not error to show the defendant to two witnesses other than the complainant. Both Zayas and Holland had seen someone, presumably the perpetrator, running from the scene. The complainant in the hospital was a 69 year old woman who had just been stabbed twice in the chest. The person whom the police had taken into custody was protesting his innocence. In my view, the police had an obligation to make sure that they had the right man or to continue a prompt investigation if the identifi*189cation was not made. It is of some significance to the issue of fairness that one of the persons, Larry Holland, could not identify the defendant.
Despite the majority’s assertion that the showup was not proximate to the crime within either time or space, the evidence reveals that the robbery occurred about 1:30 p.m., that there was an immediate search for the perpetrator, that the defendant was apprehended around 1:50 p.m., that the initial showup and identification by the victim occurred fifteen minutes after defendant’s apprehension and that the other two showups occurred within ten minutes thereafter. A lineup would have delayed any further search for a perpetrator.
Second, a reading of the whole charge indicates that it was fair. The court instructed the jury that the defendant had pleaded not guilty and had thus denied his guilt. It repeatedly stated that the burden of proof was on the People to prove the guilt of the defendant beyond a reasonable doubt.
The majority’s characterization of the court’s charge as a "prejudicial” marshalling of the evidence, particularly with respect to the complainant’s identification, is simply not borne out by a reading of the charge. The majority states as follows: "Further error [hospital showup] was committed when the court marshalled the evidence in a manner prejudicial to the defense (see, People v Shaw, 160 AD2d 393). Several pages of the record are devoted to the People’s identification evidence against defendant and a mere two sentences to the defense of misidentification. Moreover, while repeatedly emphasizing the victim’s in-hospital identification of defendant as her assailant, the court failed to mention the inconsistencies in her description of his jacket and facial hair, rendering the charge unbalanced (People v Hall, 155 AD2d 344, 346).”
The court did not marshal the evidence on identification. On this issue the court gave (1) a general charge on identification, telling the jury the things it should look for, (2) a charge, in accordance with CPL 60.25, as to the identification of a defendant where the complainant has no present recollection of the defendant (here the complainant’s testimony concerning the show-up at the hospital and the police officer’s testimony that the defendant in court and the person identified at the hospital were the same person was sufficient identification under CPL 60.25), (3) the contentions of the People on identification and (4) defendant’s contention that he was wrongly identified.
What the majority appears to be pointing to in saying the *190court marshalled the evidence on identification is the court’s summary of the contentions of the People as to identification. Thus the court stated that in addition to the complainant’s testimony, the People contended that the following evidence established identification: "One: Possession by the defendant of the complainant’s pocketbook. Two: Possession by the defendant of the clothing matching the alleged perpetrator’s clothing. Three: Defendant’s apprehension in close proximity to a blood stained knife. Four: People’s witnesses’ testimony to later seeing the man fleeing the scene. At the hospital, some forty minutes later (sic).”
With respect to the People’s contention that the defendant possessed a pocket-book, the court gave a proper charge on the possession of fruits of stolen property, including the words "in no sense are you required to infer, that the possessor of the property, the defendant, is guilty of the crime of robbery in the first degree”. With respect to the clothing worn by the perpetrator, the court stated, "In the latter regard you should examine with care the witnesses’ opportunity during the commission of the crimes to observe and remember the facial features, the body size, the hair, the skin and clothing of the perpetrator.” With respect to flight, the court gave a proper charge, a portion of which was that "[s]uch evidence is ordinarily of slight value.”
The court stated repeatedly during its identification charge that the jury must consider "all of the evidence” or the "total evidence.” Finally, during its identification charge the court gave the contention of the defendant. It stated, "The defense contends that Miss Aline Lee made a mistaken identification of the defendant as the perpetrator at the hospital emergency room, that because of such mistaken identification the wrong man is on trial in this courtroom.”
The majority also criticizes the trial court for not stating the defendant’s contention of wrong identification during the circumstantial evidence charge. The majority states: "The court also summarized the circumstantial evidence without any mention of defendant’s position that he was not the same man who struggled with the police, abandoning the victim’s pocketbook, and who later discarded the knife and jacket in the alley (see, People v Roman, 149 AD2d 305, 307).”
The language quoted from the charge as to the defendant’s contentions, as well as several other portions of the charge, make clear what the defendant’s contention was.
The conviction should be affirmed.