People v. Spigner

202 A.D.2d 331, 609 N.Y.S.2d 593, 1994 N.Y. App. Div. LEXIS 2820

Opinion

—Judgment, Supreme Court, Bronx County (David Stadtmauer, J.), rendered January 22, 1991, convicting defendant, after a jury trial, of robbery in the first degree, and sentencing him, as a second felony offender, to a term of 10 to 20 years, unanimously affirmed.

The trial court properly allowed the in-court identification of defendant by a store clerk, notwithstanding her inability on two prior occasions to pick his picture out of a photo array. The prior inability to identify defendant related to the weight, and not admissibility, of the identification (see, People v Cruz, 167 AD2d 306, lv denied 77 NY2d 959). The photo array and lineup procedures were not unduly suggestive, the fill-ins having been of similar height, weight and facial characteristics as defendant (see, People v Gonzalez, 173 AD2d 48, 56, lv denied 79 NY2d 1001). The records shows that defendant waived his right to be present during the read-back of testimony during jury deliberations. We have considered defendant’s remaining contentions and find them to be without merit. Concur — Murphy, P. J., Sullivan, Rosenberger, Asch and Tom, JJ.