Opinion
March 16, 1971
Appeal from a judgment of the County Court of Schenectady County upon verdicts convicting the defendant of crimes of robbery in the first degree, petit larceny and assault in the second degree. The defendant was indicted by the Grand Jury of Schenectady County for robbery in the first degree, grand larceny in the first degree and assault in the second degree. The incident resulting in the defendant's conviction arose as the result of an alleged assault and robbery of Mark William Minkler who testified at the trial that at about 2:30 P.M. on the 28th of January, 1967 he was walking on one of the streets in Schenectady when he was grabbed, thrown to the ground and robbed of approximately $800. At the trial the said Minkler was unable to identify his assailants. There were three eyewitnesses to the incident who testified on behalf of the People and whose testimony was direct, clear and convincing, was subject to considerable cross-examination, but, in any event, the weight and credibility to be afforded their testimony was for the jury and when accepted by the jury was sufficient beyond a reasonable doubt. The defendant raised a further issue that prior photographic identification constituted reversible error in violation of section 393-b of the Code of Criminal Procedure. The witnesses were asked at the trial that if some time after the date of the alleged incident they were shown photographs (not in evidence) and if they resembled the defendant and to which they answered in the affirmative. The questions, under the circumstances, would have been better not asked but they do not constitute such error as to require a new trial. All of the witnesses testified that they identified the defendant at the scene of the crime and again identified him in the courtroom. For instance, Mrs. Hundley on cross-examination was asked: "Q. On the afternoon of the incident, did you tell the children you saw it was Chaney? A. They recognized him at the same time I did. Q. Did you? A. I did say, yes, I did say, `It's Chaney', like that." The children referred to were the two other witnesses to the crime and both testified they recognized the defendant at the scene and explained the circumstances of knowing the said defendant prior to the date of the crime. This is not a problem involving the testimony of a witness as to identification who did not previously know the accused and so established such fact from quick observation under stress and excitement but to the contrary, the evidence of identity is so strong that there is no serious issue upon the point and therefore the error, if any, comes within the purview of section 542 of the Code of Criminal Procedure. A reading of the record is conclusive that these witnesses had identified the defendant at the scene of the crime and prior to examining any photographs. It is impossible to believe that the questions and answers as to the photograph had any real effect upon the judgment of the jury and may be disregarded as harmless error ( Gilbert v. California, 388 U.S. 263). The record has been examined for other possible errors or violation of any of the defendant's rights under the Federal and State Constitutions and we find none. Judgment affirmed. Herlihy, P.J., Staley, Jr., Cooke, Sweeney and Simons, JJ., concur.