People v. Robbins

• Decision Date: 24 February 1976
• Citation: 382 N.Y.S.2d 977,346 N.E.2d 815,38 N.Y.2d 913
• Parties: , 346 N.E.2d 815 The PEOPLE of the State of New York, Respondent, v. Ernest ROBBINS, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 977

382 N.Y.S.2d 977

38 N.Y.2d 913, 346 N.E.2d 815

The PEOPLE of the State of New York, Respondent, v. Ernest ROBBINS, Appellant.

Court of Appeals of New York.

Feb. 24, 1976.

Henrietta M. Wolfgang, Nathaniel A. Barrell and Rosalie M. Stoll, Buffalo, for appellant.

Edward C. Cosgrove, Dist. Atty. (John J. De Franks, Buffalo, of counsel), for respondent.

MEMORANDUM.

The order of the Appellate Division should be reversed and a new trial ordered.

In face of the offer of defense counsel to stipulate that the photographs identified by the victim before trial had indeed been photographs of defendant, it was error to admit the police mug shots in question notwithstanding that some effort had been made by pasteovers to modify their appearance. Prejudice to defendant's constitutional rights was inescapable (cf. United States v. Harrington, 2 Cir., 490 F.2d 487).

We cannot agree on this record that such error was harmless under any of the tests for such error (People v. Crimmins, 36 N.Y.2d 230, 237--243, 367 N.Y.S.2d 213, 326 N.E.2d 787) where the victim was the sole witness for the People and the reliance of the defense was on alibi testimony.

JASEN, Judge (dissenting).

I dissent. The victim of the robbery testified, without objection, that on the morning after the crime he went to police headquarters and identified the defendant from approximately 100 photographs of other males with similar racial characteristics which were contained in the police files. At the trial, two photographs were displayed to the witness and he identified them as the photographs he had previously selected. Although the defendant did not object to the testimony relating to this extrajudicial identification and to the display of the photographs to the witness, an objection was taken to the admission of the photographs into evidence.

While the rule in New York is that a witness may not ordinarily testify to a prior extrajudicial identification of a defendant (see, e.g., People v. Griffin, 29 N.Y.2d 91, 93, 323 N.Y.S.2d 964, 272 N.E.2d 477; People v. Baker, 23 N.Y.2d 307, 323, 296 N.Y.S.2d 745, 244 N.E.2d 232; People v. Caserta, 19 N.Y.2d 18, 21, 277 N.Y.S.2d 647, 224 N.E.2d 82), the defendant did not object to the victim's testimony. Any claim of error with respect to the testimony itself was thereby waived and did not preserve a question of law for our review. (CPL 470.05, subd. 2; People v. Robinson, 36 N.Y.2d 224, 228, 367 N.Y.S.2d 208, 326 N.E.2d 784.) Under such...