Opinion
October 29, 1970
Appeal from the Monroe County Court.
Present — Del Vecchio, J.P., Marsh, Witmer, Bastow and Henry, JJ.
Judgment unanimously affirmed. Memorandum: Two witnesses who identified defendant in court had previously selected his photograph from three or four photographs shown to them by police and a third made such a selection from seven or eight photographs. When defendant's attorney learned on cross-examination that the witnesses had made pretrial identifications by photographs he requested a Wade hearing which the court denied. On the record herein we find that such denial was harmless beyond a reasonable doubt. (Cf. Gilbert v. California, 388 U.S. 263, 272, 273.) On September 13, 1968 defendant opened a savings account in the name of James Hope at Marine Midland Trust Company, Main Office, at the desk of witness, Yagnow, who testified that he was there for 5 to 10 minutes. She observed his appearance. He wore a long leather coat, no hat and had a mustache. She identified him in court. Three days later at a new branch office of the same bank defendant uttered a forged check for $187.09, deposited $30 in the interest account and received the $157.09 balance in cash. Two bank employees observed him there and identified him in court. Witness Wollesen testified that this was on the opening day of the branch bank and only about 30 people came in; defendant told her that the new bank looked very nice; he was wearing a long leather jacket and had a mustache. Witness Campbell testified that she was a teller at the branch bank; she noticed defendant approach Miss Wollesen's cage; she heard him say "what a nice new bank to have three attractive girls working here". Since these witnesses had a sufficient opportunity to observe appellant at the time the crime was committed, the possibility of mistaken identification was minimal. ( People v. Gonzalez, 27 N.Y.2d 53.) The witnesses were shown several photographs of possible suspects by the police and each of them independently selected appellant's photograph. The photographic identification procedures were not impermissibly suggestive and did not give rise to any substantial likelihood of irreparable misidentification. The conviction should, therefore, be sustained. ( Simmons v. United States, 390 U.S. 377.) The identification procedures followed in this case were reasonable and necessary for prompt apprehension of the suspect and the factual surroundings of this case were not suggestive or conducive to misidentification and were not such as to deny appellant due process of law. ( People v. Logan, 25 N.Y.2d 184, 194; People v. Fairley, 32 A.D.2d 976, 977.)