Opinion
December 6, 1966
Judgment unanimously modified, on the law, so as to reverse and vacate the judgment of conviction of assault in the second degree under the fourth count of the indictment ( People v. English, 16 N.Y.2d 719; People v. Lo Verde, 7 N.Y.2d 114), the count dismissed, and the judgment as so modified is otherwise affirmed. We conclude no prejudicial error resulted from the testimony of a prior photograph identification. Prior to such testimony the complaining witness testified to the occurrence, described her assailant and his attire, and had directly identified the defendant as that assailant. The trial court initially denied defendant's motion for a mistrial based on the witness' statement, after which the jury was excused, and the court heard argument of counsel on the issue. Subsequently the court, in the absence of the jury, struck the testimony from the record and when the jury was brought in they were instructed to disregard such testimony. The subject was not pursued further thereafter by anyone. Under the circumstances and in the context in which the statement appears, we conclude that no prejudice resulted.
Concur — Breitel, J.P., McNally, Stevens, Steuer and Capozzoli, JJ.