Opinion
June 26, 1995
Appeal from the Supreme Court, Queens County (Golia, J.).
Ordered that the judgment is modified, on the law, by deleting the provision directing that the sentences be served "at hard labor"; as so modified, the judgment is affirmed.
The trial court did not err in allowing a witness to testify that she recognized the defendant from a prior robbery of the store in which the witness worked. The witness's testimony established her ability to identify the defendant when she observed him in the area moments before the instant crimes were committed. Under People v. Molineux ( 168 N.Y. 264), evidence of prior crimes may be used to prove identity (see also, People v Branch, 191 A.D.2d 576, affd 83 N.Y.2d 663; People v. Jamerson, 119 A.D.2d 588). Furthermore, any prejudice to the defendant was diminished by the court's limiting instructions directly after the witness's testimony regarding the uncharged crime, and again during the final charge to the jury.
As conceded by the People, that portion of the sentence which directs that it be served at hard labor is illegal (see, Penal Law § 70.20; Correction Law § 171; cf., Correction Law § 500-d), and the judgment is modified to correct the error. Rosenblatt, J.P., Ritter, Joy and Krausman, JJ., concur.