Opinion
February 3, 1986
Appeal from the Supreme Court, Kings County (Sullivan, J.).
Judgment affirmed.
A witness is generally not permitted to testify as to an extrajudicial identification of the defendant's photograph (see, People v. Griffin, 29 N.Y.2d 91; People v. Baker, 23 N.Y.2d 307, mot to amend remittitur denied 23 N.Y.2d 898; People v. Caserta, 19 N.Y.2d 18); however, an exception to this general rule applies when the defendant opens the door to this type of inquiry during his cross-examination of the witness (see, People v. Brown, 62 A.D.2d 715, affd 48 N.Y.2d 921; People v. Carter, 52 A.D.2d 829; cf. People v. Lindsay, 42 N.Y.2d 9, 12).
Based upon the record in the case at bar, we find that defense counsel persisted in a relentless attempt to pinpoint exactly at what point in time the complainant realized that he had seen the defendant before, despite defense counsel's knowledge that the complainant's revelation occurred at or about the time at which he was able to identify the defendant as his assailant from a photograph. It was this hectoring cross-examination that resulted in the complainant's testimony that he had identified the defendant from a photograph before realizing where and when he had seen him before. Accordingly, the trial court properly denied defendant's motion for a mistrial based on this testimony (cf. People v. Langert, 105 A.D.2d 845).
Viewing the evidence in a light most favorable to the prosecution, as we must (People v. Malizia, 62 N.Y.2d 755, cert denied 469 U.S. 932), we find that, based on the victim's unfettered ability to observe the defendant throughout the course of the robbery which was committed in a small, well-lit elevator and lasted for approximately 15 minutes, the evidence is sufficient to support the verdict, since "` any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt'" (People v. Contes, 60 N.Y.2d 620, 621, quoting from Jackson v. Virginia, 443 U.S. 307, 319).
We have reviewed the defendant's remaining contentions and find them to be either unpreserved or without merit. Further, we find no reason for disturbing the sentence imposed by the trial court. Gibbons, J.P., Thompson, Niehoff and Kunzeman, JJ., concur.