Opinion
Argued January 12, 1976
Decided February 24, 1976
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, JAMES L. KANE, J.
Henrietta M. Wolfgang, Nathaniel A. Barrell and Rosalie M. Stoll for appellant.
Edward C. Cosgrove, District Attorney (John J. De Franks of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be reversed and a new trial ordered.
In face of the offer of defense counsel to stipulate that the photographs identified by the victim before trial had indeed been photographs of defendant, it was error to admit the police mug shots in question notwithstanding that some effort had been made by pasteovers to modify their appearance. Prejudice to defendant's constitutional rights was inescapable (cf. United States v Harrington, 490 F.2d 487).
We cannot agree on this record that such error was harmless under any of the tests for such error (People v Crimmins, 36 N.Y.2d 230, 237-243) where the victim was the sole witness for the People and the reliance of the defense was on alibi testimony.
I dissent. The victim of the robbery testified, without objection, that on the morning after the crime he went to police headquarters and identified the defendant from approximately 100 photographs of other males with similar racial characteristics which were contained in the police files. At the trial, two photographs were displayed to the witness and he identified them as the photographs he had previously selected. Although the defendant did not object to the testimony relating to this extrajudicial identification and to the display of the photographs to the witness, an objection was taken to the admission of the photographs into evidence.
While the rule in New York is that a witness may not ordinarily testify to a prior extrajudicial identification of a defendant (see, e.g., People v Griffin, 29 N.Y.2d 91, 93; People v Baker, 23 N.Y.2d 307, 323; People v Caserta, 19 N.Y.2d 18, 21), the defendant did not object to the victim's testimony. Any claim of error with respect to the testimony itself was thereby waived and did not preserve a question of law for our review. (CPL 470.05, subd 2; People v Robinson, 36 N.Y.2d 224, 228.) Under such circumstances, the introduction of the photographs into evidence should not be reversible error where the jury already knew that the police rogue's gallery contained photographs of the defendant. Exclusion of the actual photographs would not prevent the jury from learning something they already knew, that the defendant had been in trouble with the law before. (See People v Caserta, supra.) I conclude that there is no significant probability, in view of the strong identification testimony, that exclusion of the photographs would have led to an acquittal. (People v Crimmins, 36 N.Y.2d 230, 242.) Accordingly, I would affirm the order of the Appellate Division.
Chief Judge BREITEL and Judges GABRIELLI, JONES, WACHTLER and FUCHSBERG concur in memorandum; Judge JASEN dissents and votes to affirm in a separate opinion in which Judge COOKE concurs.
Order reversed, etc.