Opinion
October 31, 1968
Appeal from the Onondaga County Court.
Present — Bastow, P.J., Williams, Goldman, Del Vecchio and Henry, JJ.
Judgment unanimously affirmed. Memorandum: This case was tried prior to the decision of Stovall v. Denno ( 388 U.S. 293). The testimony of the three bank tellers relating to their police station identification of appellant was received without objection. We recognize that such proof "may be so unfair as to amount to a denial of due process of law." ( People v. Ballott, 20 N.Y.2d 600, 606.) We conclude, however, that these witnesses had ample opportunity at the times the checks were cashed to observe defendant and that their courtroom testimony identifying him was not based on, or tainted by, the earlier identification at the police station (cf. People v. Brown, 20 N.Y.2d 238, 244; People v. Rivera, 22 N.Y.2d 453, 455).