Citation Numbers: 32 A.D.2d 1039
Filed Date: 7/21/1969
Status: Precedential
Modified Date: 1/12/2022
Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered June 20, 1967, convicting him of robbery in the second degree, upon a jury verdict, and imposing sentence. Judgment affirmed. The principal issue on this appeal is whether the pretrial identification of defendant was so unfair as to be violative of due process. Defendant was indicted in November, 1966 for the crimes of robbery in the second degree, grand larceny in the first degree, and assault in the second degree, allegedly committed on June 24, 1966. The record discloses that the two victims of these crimes had ample opportunity to observe defendant under good lighting conditions during the commission thereof. Thereafter; on August 4, 1966, the two eyewitnesses were told to come to court to see if they could identify someone who fit the description they had given to the police. One of the witnesses testified that she recognized defendant as he entered the courtroom; the other witness testified that she recognized him as he was standing on the side of the courtroom in the company of several men. No one had pointed him out to them as the man who committed the crimes for which he was charged. In our opinion, the record clearly establishes that the pretrial identification procedure used in this ease was not unnecessarily and prejudieally suggestive; nor was the in-court identification “ based on or tainted by potentially misleading circumstances in the earlier identification ” (People v. Rivera, 22 N Y 2d 453, 455; People v. Brown, 20 N Y 2d 238). The circumstances under which the witnesses observed defendant prior to their in-court identification are strikingly similar to those found in the recently decided case of People v. Logan (25 N Y 2d 184) wherein the Court of Appeals held that the in-court identification was not rendered inadmissible or subject to preliminary inquiry by reason of the pretrial identification of defendant. We have examined each of the other arguments urged by defendant on this appeal and find them, on the basis of the record before us, to be without merit. Beldock, F. J., Christ and Munder, JJ., concur; Hopkins and Kleinfeld, JJ., dissent and vote to remit the case to the Criminal Term for a hearing in accordance with the following memorandum, and to hold the appeal in abeyance in the interim: On February 1, 1967, defendant was convicted of robbery in the second degree, upon a jury verdict, after a trial in which the People’s case rested exclusively upon the identification testimony of two employees of a personal loan company.