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The People of the State of New York, Respondent, v. Robert Spigner, Appellant

New York Supreme Court, Appellate Division1994-03-24
202 A.D.2d 331609 N.Y.S.2d 593

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Opinion

majority opinion

—Judgment, Supreme Court, Bronx County (David Stadtmauer, J.), rendered January 22, 1991, convicting defendant, after a jury trial, of robbery in the first degree, and sentencing him, as a second felony offender, to a term of 10 to 20 years, unanimously affirmed.

The trial court properly allowed the in-court identification of defendant by a store clerk, notwithstanding her inability on two prior occasions to pick his picture out of a photo array. The prior inability to identify defendant related to the weight, and not admissibility, of the identification (see, People v Cruz, 167 AD2d 306, lv denied 77 NY2d 959). The photo array and lineup procedures were not unduly suggestive, the fill-ins having been of similar height, weight and facial characteristics as defendant (see, People v Gonzalez, 173 AD2d 48, 56, lv denied 79 NY2d 1001). The records shows that defendant waived his right to be present during the read-back of testimony during jury deliberations. We have considered defendant’s remaining contentions and find them to be without merit. Concur — Murphy, P. J., Sullivan, Rosenberger, Asch and Tom, JJ.