
    The People of the State of New York, Respondent, v Ralph C., Appellant.
    Argued March 26, 1976;
    decided April 29, 1976
    
      
      Edward Klein for appellant.
    
      Nicholas Ferraro, District Attorney (Dennis Lebwohl of counsel), for respondent.
   Memorandum. The order of Appellate Term affirming the judgment of the Criminal Court of the City of New York should be affirmed.

We fail to perceive the relevance, for any purpose, of the information contained in the proffered weather report which the defendant contends the trial court refused to admit into evidence. There was no question of fact as to whether it was raining, as indeed the complainant herself testified that it was raining at the moment that the defendant accosted her. Since her observation of defendant was from very close range—close enough for her to strike him with her umbrella—the amount of rain which fell at the city’s official weather station during the pertinent one-hour period could not, without more, have any significant bearing on her ability to observe the defendant. Moreover, we are not empowered to consider defendant’s assertion that he was at his place of employment six blocks away when the crime was committed, as this involves nothing more than a question of fact. (People v Eisenberg, 22 NY2d 99, 101; People v Leonti, 18 NY2d 384.)

Fuchsberg, J. (concurring).

I concur in the result here, but find it difficult to see how it can be said that the weather report was not relevant. The main issue in this case was the accuracy of the identification of the 16-year-old defendant, who, incidentally, was unshaken in his denial of his involvement. The sole support for the identification was the testimony of the victim herself. At the time she had been accosted, it was from the rear and while she was standing in the rain with an umbrella over her head. Afterwards, when in a state of surprise, shock and anger, she turned to face the assailant, she had him under her observation, according to her own testimony, for a total of no more than approximately five seconds. During that brief interval, she was exposed directly to the rain while she was flailing at the person she later identified as the defendant with her umbrella.

It was in the context of these facts that defendant’s counsel informally made what can be construed as an offer to put the official weather report into evidence. That report showed that .43 inches of rain, a veritable downpour of precipitation in such a short time, had fallen during the hour in which the crime occurred. That certainly was a probative fact going to the accuracy of the victim’s ability to later identify her assailant.

However, since, in this trial before a Judge sitting without a jury, the court never expressly refused to receive the report, but responded to its offer by having defendant’s counsel, at the court’s invitation, inform it of its substance and, because, as the record indicates, the Judge appears thereafter to have carefully considered the effect of the weather on the complaining witness’ visibility, the report should be considered to have been received, albeit in a manner which partook of the informality with which it had been offered. Therefore, the affirmance on the weather report point should be because the report entered into the trial court’s determination of the factual issue to which it related, and not because it would have been correct to refuse it admission.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler and Cooke concur in memorandum; Judge Fuchs-berg concurs in result in a separate opinion.

Order affirmed.  