People v. Trowbridge , 305 N.Y. 471 ( 1953 )

Fuld, J.

(dissenting). I am inclined to agree that the testimony of the police officer, Conley, as to Margolius’ out-of-court identification of defendant as the robber was inadmissible, but that does not mean that the judgment of conviction should be reversed.

In the light of the victim’s positive and unequivocal trial identification of defendant, particularly in view of the circumstances under which he had made his initial identification, the challenged testimony of the police officer added little, if anything, to the case against defendant. The result would, I am willing to acknowledge, be different, if, as in the case supposed in the court’s opinion (p. 477), the trial judge had permitted a number of other witnesses to testify that a complainant had ‘ ‘ on a particular occasion ” previously identified the accused. In the case before us, however, reception of Conley’s testimony could not, in my judgment, have possibly influenced the jury or affected its verdict.

I would affirm, the conviction under section 542 of the Code of Criminal Procedure.

Lewis, Ch. J., Desmond, Froessel and Van Voorhis, JJ., concur with Conway, J.; Fuld, J., dissents in opinion in which Dye, J., concurs.

Judgments reversed, etc.