Opinion
Argued June 4, 1974
Decided June 26, 1974
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, WILLIAM G. HEFFRON, J.
Joseph B. Mistrett and Nathaniel A. Barrell for appellant.
Edward C. Cosgrove, District Attorney ( William E. Balthasar of counsel), for respondent.
MEMORANDUM. One aspect of the critical identification issue on the trial of this case was whether defendant had a moustache on September 22, 1971, the date of the robbery. Prosecution witnesses testified that he did not; defense witnesses testified that he did. In rebuttal the prosecution offered two photographs taken at the lineup on October 1, 1971 in which defendant appeared clean-shaven. These photographs were received in evidence over defendant's objection that the representations of defendant in the lineup would inflame the jury and that no proper foundation had been laid, both of which grounds were without merit and have now been abandoned. No objection was made on the ground of remoteness or irrelevance as to defendant's appearance at the time of the robbery, the only ground now urged, and oral testimony that defendant was clean-shaven at the time of the lineup was received at defendant's suggestion and without objection. In these circumstances, even if perchance the photographs were irrelevant as appellant purports to argue, we conclude that the admission of the photographs was not reversible error.
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, RABIN and STEVENS concur.
Order affirmed in a memorandum.