Opinion
June 5, 1967
Judgment of the Supreme Court, Kings County, rendered November 30, 1965, affirmed. While it is error to permit a witness to testify as to his prior identification of a defendant by means of photographs ( People v. Cioffi, 1 N.Y.2d 70; People v. Giamario, 20 A.D.2d 815, affd. 15 N.Y.2d 939) and the references by the District Attorney and the court to such testimony were improper (see, e.g., People v. Hunnicutt, 15 A.D.2d 536; People v. Mezzapella, 19 A.D.2d 729), that does not, in our judgment, necessitate a new trial. The evidence of the complaining witnesses as to identification was positive and convincing. They had defendant under observation for three minutes, in a store illuminated with six fluorescent lights and while they were in close proximity to him. Under such circumstances, we believe the errors should be disregarded (cf. People v. Rogers, 21 A.D.2d 720; People v. Friedberg, 24 A.D.2d 1008; People v. Milburn, 26 A.D.2d 420), particularly where, as here, the defendant's guilt was established beyond a reasonable doubt (Code Crim. Pro., § 542; People v. Vanderborg, 301 N.Y. 750). Defendant's other contentions have been examined and we find no merit therein. Beldock, P.J., Christ, Brennan, Hopkins and Benjamin, JJ., concur.