THE PEOPLE &C., RESPONDENT, v. SAUL RUSSELL, APPELLANT.
79 N.Y.2d 1024, 594 N.E.2d 922, 584 N.Y.S.2d 428 (1992).
May 7, 1992
2 No. 69
Decided May 7, 1992
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This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
Bruce A. Petito, for Appellant.
Bridget Rahilly Steller, 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 NY2d 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 non-eyewitnesses 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 AD2d 436, 437,
lv denied 70 NY2d 953) or of the photographs of defendant (see, People
v Lindsay, 42 NY2d 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., U.S. v Robinson, 804 F2d 280, 282 (4th Cir. 1986); U.S. v
Farnsworth, 729 F2d 1158, 1160 (8th Cir. 1984)).
Also unavailing are defendant's arguments that the four
non-eyewitnesses photograph identifications should have been excluded
SNIPPETS:
THE PEOPLE &C., RESPONDENT, v. SAUL RUSSELL, APPELLANT.
This memorandum is uncorrected and subject to revision before publication in the New York
The trial court did not abuse its discretion or otherwise err as a matter of law in allowing
Their testimony was clearly relevant inasmuch as the robber's identity was the central issue
Nor did the testimony of the four non-eyewitnesses constitute improper bolstering or an
Rather, given the personal knowledge these witnesses had of defendant's appearance as of the
U.S. v Farnsworth, 729 F2d 1158, 1160 (8th Cir.
Also unavailing are defendant's arguments that the four non-eyewitnesses photograph
No objection having been registered as to the number of witnesses presented, this issue was
And, although they did identify defendant in court as the bank robber, they never stated that
Chief Judge Wachtler and Judges Kaye, Titone, Hancock, Bellacosa and Yesawich concur.
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