Opinion
June 13, 1977
Appeal by defendant from a judgment of the County Court, Westchester County, rendered February 18, 1975, convicting him of robbery in the first and second degrees, grand larceny in the third degree and petit larceny, upon a jury verdict, and imposing sentence. Judgment modified, on the law, by reversing the convictions of grand larceny in the third degree and petit larceny, and the sentences imposed thereon, and the said counts are dismissed. As so modified, judgment affirmed (see People v Grier, 37 N.Y.2d 847). Even assuming that the pretrial photographic identification procedure employed with respect to the witnesses Mee and Jessup was impermissibly suggestive, their in-court identifications had an independent source; namely, their observations at the time of the crime. Further, the record reveals that defense counsel expressly waived any and all objections to the admission of testimony as to the pretrial photographic identification, and to the photographs themselves, after he opened the door to this subject during cross-examination of the witness Jessup. Hopkins, J.P., Martuscello, Margett and O'Connor, JJ., concur.