Opinion
December 6, 1976
Appeal by defendant from a judgment of the County Court, Orange County, rendered February 13, 1975, convicting him of robbery in the first degree, assault in the second degree and grand larceny in the third degree, upon a jury verdict, and imposing sentence. Judgment modified, on the law, by reversing the conviction of grand larceny in the third degree, and the sentence imposed thereon, and the said count is dismissed. As so modified, judgment affirmed. As a result of the failure of the People to produce the photographs displayed to the victim, Roosevelt Henry, at the Wade hearing held on November 15, 1974, the prior identification by the complainant of the defendant from such photographs was properly excluded. However, the fact that the victim was in the company of the defendant Putman for some 30 minutes, and was seated next to him at a bar and bought him a drink, was of such independent origin as to render remote the possibility that the display of the photographs at the station house tainted his in-court identification, either at the hearing or at the trial. The issue of the defendant's identity, as well as the credibility of his alibi witness, were issues to be considered by the jury in evaluating the proof (see People v Joyiens, 39 N.Y.2d 197). We have reviewed defendant's additional claims of errors and find them to be without merit. Inasmuch as defendant was convicted of robbery in the first degree, the conviction of larceny in the third degree must be reversed and the said count dismissed as a lesser included count (see People v Grier, 37 N.Y.2d 847). Cohalan, Acting P.J., Margett, Damiani and Mollen, JJ., concur.