Summary
In Russell, the trial court allowed four lay witnesses-the defendant's roommate, his roommate's mother, his landlord, and a friend-to identify the defendant as the person caught in surveillance photographs committing a bank robbery (People v Russell, 165 A.D.2d 327, 329 [1991], affd 79 N.Y.2d 1024).
Summary of this case from People v. MosleyOpinion
Argued March 26, 1992
Decided May 7, 1992
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, Judith A. Hillery, J.
Bruce A. Petito for appellant.
William V. Grady, District Attorney (Bridget Rahilly Steller of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed.
The trial court did not abuse its discretion or otherwise err as a matter of law in allowing four lay witnesses — defendant's roommate, his roommate's mother, his landlord, and a friend — who did not witness the bank robbery, to identify the defendant as the person depicted as the robber in two bank surveillance photographs (see, People v Byrnes, 33 N.Y.2d 343, 348). Their testimony was clearly relevant inasmuch as the robber's identity was the central issue in the case and the People presented ample proof that defendant had changed his appearance immediately after the crime by having his beard shaved.
Nor did the testimony of the four noneyewitnesses constitute improper bolstering or an improper opinion about an ultimate fact. The challenged testimony did not concern a previous extrajudicial identification of defendant (see, People v Bonnet, 134 A.D.2d 436, 437, lv denied 70 N.Y.2d 953) or of the photographs of defendant (see, People v Lindsay, 42 N.Y.2d 9, 12). Rather, given the personal knowledge these witnesses had of defendant's appearance as of the time when the photographs were taken, their testimony served to aid the jury in making an independent assessment regarding whether the man in the bank photographs was indeed the defendant, a task made more onerous by defendant's altering his appearance after commission of the crime (see, e.g., United States v Robinson, 804 F.2d 280, 282 [4th Cir 1986]; United States v Farnsworth, 729 F.2d 1158, 1160 [8th Cir 1984]).
Also unavailing are defendant's arguments that the four noneyewitnesses' photograph identifications should have been excluded because they were unduly cumulative and duplicative of the bank tellers' eyewitness testimony. No objection having been registered as to the number of witnesses presented, this issue was not preserved for review (CPL 470.05). Beyond that, the bank tellers' testimony cannot be said to have been duplicated for the tellers were not generally familiar with defendant's appearance at the time of the robbery. And, although they did identify defendant in court as the bank robber, they never stated that he was the person in the surveillance photographs, only that the photographs accurately portrayed the crime scene and that the man in the photograph was the robber.
Defendant's remaining contentions are either unpreserved for review or lacking in merit.
Chief Judge WACHTLER and Judges KAYE, TITONE, HANCOCK, JR., BELLACOSA and YESAWICH, JR., concur; Judge SIMONS taking no part.
Designated pursuant to N Y Constitution, article VI, § 2.
Order affirmed in a memorandum.