Opinion
Argued May 13, 1968
Decided June 5, 1968
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, SAMUEL S. LEIBOWITZ, J.
Herbert A. Lyon for appellant.
Aaron E. Koota, District Attorney ( Frank Di Lalla of counsel), for respondent.
MEMORANDUM.
Reargument of the prior decision ( 15 N.Y.2d 778) was allowed ( 20 N.Y.2d 970) to permit defendant to argue and this court to consider the effect of Chapman v. California ( 386 U.S. 18) on the judgment of conviction. For a period of about 45 minutes, during which a robbery and a conversation seeking the discovery of jewelry and other property was in progress, the complaining witness had defendant under close and attentive observation. After his arrest she identified him at a police station line-up of five men. At this time he wore neither hat nor overcoat. Therefore, the hat and overcoat which had been found by police in defendant's home shortly after his arrest and which were received in evidence played no significant role in the case, even if the seizure be deemed not an incident to the arrest. The witness did not say these were the hat and coat defendant wore at the time of the crime but they were "exactly like" those items. She testified, e.g.: "I never said this is the coat". The clear and direct evidence of this witness, consistent with her initial identification, places the exhibits in question in the periphery of the proof. They played no meaningful role in identification. Their receipt was harmless beyond any reasonable doubt ( Chapman v. California, supra). On reargument, the decision affirming the judgment should be adhered to.
Chief Judge FULD and Judges BURKE, SCILEPPI, BERGAN, KEATING, BREITEL and JASEN concur.
Upon reargument: Judgment affirmed.