People v. O'Dea

44 A.D.2d 767, 354 N.Y.S.2d 256, 1974 N.Y. App. Div. LEXIS 5301

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 11, 1974
• Status: Published

Opinion

Judgment unanimously affirmed. Memorandum: While it was error for the trial court to admit the testimony of witnesses Brontman, Morley and Kennerson, relative to the extrajudicial identification of defendant’s photograph from a mugshot book (People v. Griffin, 29 N Y 2d 91; People v. Wright, 21 N Y 2d 1011; People v. Caserta, 19 N Y 2d 18; and People v. Cioffi, 1 N Y 2d 70), in view of the positive and convincing in-court identification of defendant by Brontman and Morley, premised on more than ample opportunity for reflective observation of defendant at the time of their encounter with him, such error may be treated as harmless. (People v. Milburn, 19 N Y 2d 910; CPL 470.05, subd. 1.) Moreover, it was defendant’s counsel who accentuated the photographic evidence and repeatedly referred to it as “mugshots”. (Appeal from judgment of County Court convicting defendant of robbery, third degree and grand larceny, second degree.) Present — Marsh, P. J., Witmer, Simons, Mahoney and Goldman, JJ.