
    The People of the State of New York, Respondent, v Gilberto Ruiz, Appellant.
    Argued January 7, 1981;
    decided February 10, 1981
    
      APPEARANCES OF COUNSEL
    
      Joseph Calluori and William E. Hellerstein for appellant.
    
      Mario Meróla, District Attorney (Howard K. King, Gail Jacobs and Steven R. Kartagener of counsel), for respondent.
   OPINION OF THE COURT

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 indentification, 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 NY2d 392; People v Barnes, 50 NY2d 375).

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum.

Order affirmed.  