Opinion
June 3, 1966
This is an appeal from a judgment of conviction of the crime of robbery, second degree, after a jury trial in County Court of Albany County. The defendant raises many issues on this appeal, but it appears that there was strong proof of his guilt, both by positive identification and strong circumstantial evidence. The defendant contends that a certain wallet should not have been admitted in evidence, but no motion was made to suppress this evidence, either before or at the trial, nor did the defendant raise any objection to its receipt in evidence ( People v. Weems, 17 N.Y.2d 598). It appears that the complaining witness was permitted to testify as to his previous identification of the defendant as the person who robbed him, but since the identification was questioned by the defendant's counsel, it was permissible testimony. (See Code Crim. Pro., § 393-b; cf. People v. Spinello, 303 N.Y. 193.) We further find nothing in the cross-examination of the defendant and summation by the District Attorney which would warrant a reversal of this conviction. The response of the trial court to a question by the jury contains a discrepancy when compared to the testimony, but such discrepancy is not sufficient for the granting of a new trial. Judgment of conviction affirmed. Gibson, P.J., Reynolds, Taylor and Aulisi, JJ., concur.