Opinion
December 19, 1986
Appeal from the Niagara County Court, Hannigan, J.
Present — Callahan, J.P., Doerr, Green, Lawton and Schnepp, JJ.
Judgment unanimously modified, on the law, and as modified, affirmed, in accordance with the following memorandum: On appeal from a judgment of conviction for third degree robbery (Penal Law § 160.05) and petit larceny (Penal Law § 155.25), defendant argues that the court erred in not dismissing the petit larceny as a lesser included offense to the robbery and in denying his motion to suppress an identification by complainant based upon an allegedly suggestive photo array.
Only the first claim has merit. Since petit larceny is a lesser included offense of robbery (see, People v. Grier, 37 N.Y.2d 847, 848; People v. Jones, 101 A.D.2d 738), the court was obligated to dismiss the larceny conviction (CPL 300.40 [b]).
Defendant's claim regarding the identification is based on the fact that the police showed a single photograph of the defendant to the robbery victim after she had already selected another photograph of him from a photo array. Even if the photographic identification was questionable, the victim's positive identification of defendant in court had an independent basis given that the victim had an opportunity to view defendant face to face, a few feet away, under bright light, during an encounter that lasted approximately 10 minutes (see, Manson v Brathwaite, 432 U.S. 98, 114; People v. Ballot, 20 N.Y.2d 600; cf. People v. Hall, 81 A.D.2d 644).
Accordingly, the judgment of conviction is modified by reversing defendant's conviction for petit larceny and in all other respects the judgment is affirmed.