People v. Owens

Appellate Division of the Supreme Court of New York

People v. Owens

25 A.D.2d 740, 269 N.Y.S.2d 156, 1966 N.Y. App. Div. LEXIS 4417

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 28, 1966

StatusPublished

This text of 25 A.D.2d 740 (People v. Owens) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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People v. Owens, 25 A.D.2d 740, 269 N.Y.S.2d 156, 1966 N.Y. App. Div. LEXIS 4417 (N.Y. Ct. App. 1966).

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Appeal from a judgment of the Supreme Court, Bronx County, rendered October 8, 1964 upon a verdict convicting defendant of the crimes of robbery in the first degree, assault in the -first degree and possession of firearm.

Per Curiam.

The identification of the defendant, as being a participant in the crime with which he was here charged, was overwhelmingly established by the positive testimony of two police officers and one of the victims. There was but one police officer who could not make the identification, but the reason for his inability to do so was because he did not get an opportunity to make a sufficient frontal observation of the party he saw. Consequently, such failure [741]*741of identification does not weaken the positive testimony of those who testified that this defendant was on the scene at the time the crime was being committed. The admission of testimony by one police officer of his prior identification of the defendant from a photograph was, in the circumstances of this case, properly received. While, ordinarily, testimony of such identification should be excluded (see People v. Cioffi, 1 N Y 2d, 70, 73; People v. Hunter, 12 A D 2d 835, 836, 837), the defendant may not be heard here to complain about its reception because it was the attorney for the defendant who, through his cross-examination of the police officer, elicited the testimony of the officer’s visit to the police photo gallery.

The defendant complains of some mistakes of fact by the Trial Justice in the marshalling of the evidence. These were inconsequential and, in the light of the strong ease made out against this defendant, they may not be considered to have had any prejudicial effeet.

The judgment should be affirmed.

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Appeal from a judgment of the Supreme Court, Bronx County, rendered October 8, 1964 upon a verdict convicting defendant of the crimes of robbery in the first degree, assault in the -first degree and possession of firearm.

Per Curiam.

The identification of the defendant, as being a participant in the crime with which he was here charged, was overwhelmingly established by the positive testimony of two police officers and one of the victims. There was but one police officer who could not make the identification, but the reason for his inability to do so was because he did not get an opportunity to make a sufficient frontal observation of the party he saw. Consequently, such failure [741]*741of identification does not weaken the positive testimony of those who testified that this defendant was on the scene at the time the crime was being committed. The admission of testimony by one police officer of his prior identification of the defendant from a photograph was, in the circumstances of this case, properly received. While, ordinarily, testimony of such identification should be excluded (see People v. Cioffi, 1 N Y 2d, 70, 73; People v. Hunter, 12 A D 2d 835, 836, 837), the defendant may not be heard here to complain about its reception because it was the attorney for the defendant who, through his cross-examination of the police officer, elicited the testimony of the officer’s visit to the police photo gallery.

The defendant complains of some mistakes of fact by the Trial Justice in the marshalling of the evidence. These were inconsequential and, in the light of the strong ease made out against this defendant, they may not be considered to have had any prejudicial effeet.

The judgment should be affirmed.

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25 A.D.2d 740, 269 N.Y.S.2d 156, 1966 N.Y. App. Div. LEXIS 4417, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-owens-nyappdiv-1966.