Opinion
April 11, 1974
Appeal from the County Court.
Present — Marsh, P.J., Witmer, Simons, Mahoney and Goldman, JJ.
Judgment unanimously affirmed. Memorandum: While it was error for the trial court to admit the testimony of witnesses Brontman, Morley and Kennerson, relative to the extrajudicial identification of defendant's photograph from a mugshot book ( People v. Griffin, 29 N.Y.2d 91; People v. Wright, 21 N.Y.2d 1011; People v. Caserta, 19 N.Y.2d 18; and People v. Cioffi, 1 N.Y.2d 70), in view of the positive and convincing in-court identification of defendant by Brontman and Morley, premised on more than ample opportunity for reflective observation of defendant at the time of their encounter with him, such error may be treated as harmless. ( People v. Milburn, 19 N.Y.2d 910; CPL 470.05, subd. 1.) Moreover, it was defendant's counsel who accentuated the photographic evidence and repeatedly referred to it as "mugshots".