Opinion
March 13, 1961
Appeal by defendant from a judgment of the County Court, Westchester County, rendered July 31, 1956, convicting him of robbery in the first degree, after a jury trial, and sentencing him to serve a term of 10 to 20 years. Judgment affirmed. From the credible evidence in this record, it appears that upon the trial five of the victims of the robbery identified defendant and that each of the five testified to having identified him prior to the trial. Such testimony of prior identifications was competent (Code Crim. Pro., § 393-b). It also appears that upon the trial two police officers testified that they were present at the times the five victims had identified defendant prior to the trial, and that those five persons did identify him at such times. Such testimony by the two police officers was incompetent and inadmissible, notwithstanding that no objection was taken thereto. But in view of the other competent evidence of identification, and in view of further evidence that part of the proceeds of the robbery was found in defendant's possession, it must be held: (1) that there is no reasonable probability that the incompetent evidence affected the jury's verdict; and (2) that the error in admitting such evidence should be disregarded under section 542 of the Code of Criminal Procedure (cf. People v. Trowbridge, 305 N.Y. 471). Nolan, P.J., Beldock, Ughetta, Kleinfeld and Pette, JJ., concur.