People v. Bones

125 A.D.2d 931, 510 N.Y.S.2d 328, 1986 N.Y. App. Div. LEXIS 63106

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 19, 1986
• Status: Published

Opinion

— Judgment unanimously modified, on the law, and as modified, affirmed, in accordance with the following memorandum: On appeal from a judgment of conviction for third degree robbery (Penal Law § 160.05) and petit larceny (Penal Law § 155.25), defendant argues that the court erred in not dismissing the petit larceny as a lesser included offense to the robbery and in denying his motion to suppress an identification by complainant based upon an allegedly suggestive photo array.

Only the first claim has merit. Since petit larceny is a lesser included offense of robbery (see, People v Grier, 37 NY2d 847, 848; People v Jones, 101 AD2d 738), the court was obligated to dismiss the larceny conviction (CPL 300.40 [3] [b]).

Defendant’s claim regarding the identification is based on the fact that the police showed a single photograph of the defendant to the robbery victim after she had already selected another photograph of him from a photo array. Even if the photographic identification was questionable, the victim’s positive identification of defendant in court had an independent basis given that the victim had an opportunity to view defendant face to face, a few feet away, under bright light, during an encounter that lasted approximately 10 minutes (see, Manson v Brathwaite, 432 US 98, 114; People v Ballot, 20 NY2d 600; cf. People v Hall, 81 AD2d 644).

Accordingly, the judgment of conviction is modified by reversing defendant’s conviction for petit larceny and in all other respects the judgment is affirmed. (Appeal from judgment of Niagara County Court, Hannigan, J. — robbery, third degree.) Present — Callahan, J. P., Doerr, Green, Lawton and Schnepp, JJ.