Opinion
July 2, 1990
Appeal from the Supreme Court, Richmond County (Owens, J.).
Ordered that the judgment rendered November 24, 1982, is affirmed; and it is further,
Ordered that the judgment rendered November 4, 1987, is modified by reducing the sentence imposed to an indeterminate term of 1 1/3 to 4 years' imprisonment; as so modified, the judgment is affirmed.
The trial court did not err in permitting the defendant to be identified as the robber by reference to his arrest photograph. The defendant had absconded and was being tried in absentia. Since this was not an initial identification procedure and because the defendant could not be identified in person at the trial, the use of his photograph was proper (see, People v Seabrooks, 120 A.D.2d 691). We also note that the prosecutor had complied with the direction by the trial court to remove the numbers and letters "NYCPD" from the photograph.
We find no merit to the defendant's contention that the prosecution failed to prove the crime of robbery in the first degree because it failed to produce evidence that the weapon he utilized was operative or loaded. It was incumbent upon the defendant to affirmatively prove that the weapon was inoperative or unloaded, which he failed to do (see, People v. Cotarelo, 71 N.Y.2d 941; People v. Proctor, 151 A.D.2d 788; People v. Brown, 108 A.D.2d 922; see also, Penal Law § 160.15).
The defendant's contention that the court should have charged the lesser included offense of robbery in the third degree is not preserved for appellate review (see, CPL 470.05). In any event, there is no reasonable view of the evidence which would support a finding that the defendant committed the lesser crime but not the greater (see, People v. Baskerville, 60 N.Y.2d 374; People v. Gray, 144 A.D.2d 483; People v. Bynum, 125 A.D.2d 207).
Finally, as the People concede, at the time of the crime, bail jumping in the first degree was a class E felony punishable by a term of imprisonment not to exceed 4 years (see, Penal Law § 215.57, 70.00 Penal [2] [e]; People v. Jones, 101 A.D.2d 738). The sentence imposed was clearly outside the then-permissible range. Therefore, we have modified the sentence accordingly (see, People v. Rockwood, 78 A.D.2d 845).
We have considered the contentions raised in the defendant's supplemental pro se brief and find them to be without merit. Lawrence, J.P., Kunzeman, Rubin and Rosenblatt, JJ., concur.