
    The People of the State of New York, Respondent, v. Benjamin Brown, Appellant.
    Argued May 29, 1967;
    decided July 7, 1967.
    
      
      Joseph H. Spain for appellant.
    I. The Trial Judge committed reversible error by admitting in evidence testimony of false and fraudulent, representations employed by appellant in the course of accomplishing the alleged theft, since the indictment made no mention of any fraudulent representations as required by section 1290-a of the Penal Law. (People v. Noblett, 244 N. Y. 355; People v. Lobel, 298 N. Y. 243; People v. Palen, 7 N Y 2d 107; People v. Segal, 13 A D 2d 1033; People v. Von Cseh, 9 A D 2d 660, 8 N Y 2d 993; People v. Levan, 295 N. Y. 26; People v. Colavecchio, 11 A D 2d 161; People v. Kenney, 135 App. Div. 380; People v. Peckens, 153 N. Y. 576; People v. Stetz, 206 App. Div. 223.) II. The indictment under which appellant was convicted contained two counts of larceny which were improperly joined in one indictment in violation of section 278 of the Code of Criminal Procedure, and it should have been dismissed. (People v. Nerone, 32 Misc 2d 536; People v. Namolik, 8 A D 2d 685.) III. The unreasonably long and unjustified delay in the hearing of appellant’s appeal and in his receipt of the trial minutes is reversible error. (People v. Prosser, 309 N. Y. 353; People v. Wilson, 8 N Y 2d 391; People ex rel. Harty v. Fay, 10 N Y 2d 374; People v. Pride, 3 N Y 2d 545; Dowd v. Cook, 340 U. S. 206; People v. Stanley, 15 N Y 2d 860; People v. Josey, 19 A D 2d 660; Mapp v. Ohio, 367 U. S. 643.) IV. Complainant’s identification of appellant was unfair as a matter of law. (Matter of Bojinoff v. People, 299 N. Y. 145; Thompson v. Louisville, 362 U. S. 199; People v. Strong, 13 N Y 2d 760; People v. Spitzer, 294 N. Y. 5; People v. Kelley, 253 App. Div. 430; People v. McLucas, 15 N Y 2d 167.) V. Appellant was denied an impartial trial. (People v. De Martino, 252 App. Div. 476; People v. Viscio, 241 App. Div. 499; People v. McLucas, 15 N Y 2d 167.)
    
      
      Thomas J. Mackell, District Attorney (Joseph F. Lisa of counsel), for respondent.
    I. The testimony now objected to was properly received and no reversible error was committed. Furthermore the question was not preserved for consideration on appeal. In any event appellant was not prejudiced thereby. (People v. Lehrer, 182 Misc. 645; People v. Leibowitz, 12 Misc 2d 553; People v. Lobel, 298 N. Y. 243; People v. Palen, 7 N Y 2d 107; People v. Segal, 13 A D 2d 1033; People v. Von Cseh, 9 A D 2d 660, 8 N Y 2d 993; People v. Stetz, 206 App. Div. 223; State v. Goins, 232 La. 238, 355 U. S. 847; People v. Lee, 4 A D 2d 770, 4 N Y 2d 843; People v. Ramistella, 306 N. Y. 379; People v. Vanderborg, 277 App. Div. 795, 301 N. Y. 750; People v. Small, 2 A D 2d 935, 3 N Y 2d 720; People v. Robbins, 278 App. Div. 592, 302 N. Y. 885; People v. Boodie, 16 A D 2d 904; People v. Gallo, 16 A D 2d 795; People v. Rothstein, 1 Misc 2d 516.) II. The intent required to be proven is the intent to commit a crime, and this need not extend to the factors which determine the punishment thereon. (Slater v. Commonwealth, 179 Va. 264; Dunlavey v. Commomvealth, 184 Va. 521; Morissette v. United States, 342 U. S. 246; Leighton v. People, 88 N. Y. 117; McCourt v. People, 64 N. Y. 583.) III. The failure to supply defendant with the complete record on his appeal did not violate his constitutional rights. (People v. Stanley, 15 N Y 2d 860.) IV. Appellant was tried before an impartial Judge. V. Appellant’s conviction under count one of the indictment was proper. VI. Guilt was established beyond a reasonable doubt. (People v. Atlas, 183 App. Div. 595, 230 N. Y. 629; Amend v. Hurley, 293 N. Y. 587.)
   Van Voorhis, J.

If a defendant has made use of any false or fraudulent representation or pretense in the course of .accomplishing, or in aid of, or in facilitating a theft, evidence thereof may not be received at the trial, unless the indictment dr information charges . such, representation or pretense (Penal Law, § 1290-a). This statute (L. 1950, ch. 149) enacted the principles expressed in the dissenting opinion by Judge Fuld in People v. Lobel (298 N. Y. 243): Appellant contends that evidence of this character was illegally introduced against him in this prosecution for grand larceny in the first degree. The record does not indicate, however, that any such representation or pretense was used in this instance. Jennie Finch is the complaining witness on the first count in the indictment, which is the only one which is before us. Her testimony is that she withdrew $200 from Jamaica Savings Bank at 161st Street and Jamaica Avenue, Queens, on August 29, 1960 at about 12:00 m. Her purpose in making this withdrawal was “ to get a money order to send taxes down to South Carolina.” After coming out of the bank she met defendant Brown, who inquired of her whether she knew a lady whose address was on a piece of paper in his hand. She replied that she did not know her, but told him that he should get a telephone book and she would find this person. While they were looking in the book, the defendant Meyers came up and all three of them hunted in the telephone book to find the number. Brown told her that he did not have a place to stay, she referred him to the YMCA, but he objected for the reason that “ There is nothing in there but men.” She got into their automobile with them and they drove around for a while after which she got out of the car and returned to the hank. She testified that her granddaughter had just been discharged from Memorial Hospital and that the hospital bill was $800. While she was writing a slip to withdraw the additional sum of $800 for this purpose, she testified that another man entered, also a negro, and that when she left the bank he walked with her, side by side, and took her to the same car. Brown and Meyers were there. This time they ‘ ‘ pushed me into the car. ’ ’ After that, ‘ they started their maneuvers ’ ’. The testimony at this point is:

“ The Witness: Brown said to me, How much money you got.’ I said, That ain’t none of your business.’ Meyers took my bag. It was a big brown bag.
“The Court: He took your bag.
“ A. (continuing) And he took my money out of the bag and handed it over the seat to Brown.
“ The Court: Meyers did that?
“The Witness: And in pulling out the money he left $50 in the bank book, stuck it right in the bank book.
“ Q. How much did you have in the bank book then?
“ A. $1,000 was in the bank book. He pulled it out, he took out $950. ’ ’

It is apparent from the record that until this point nothing had been said in the nature of false representations or pretenses, that this time she did not enter the automobile voluntarily but was pushed in, and that her bag containing the $1,000 was taken from her against her will. It was only after this had occurred that she testified that “ Brown said that he had been on a ship since he was seven years old and that his captain told him ‘ that niggers didn’t put money in the bank.’ I said, I put my little bit in there. He said, ‘ Oh no, them is food book, them ain’t no bank book, that’s what you got rations food on.”

It was after this that the complaining witness said that Brown was supposed to bury her money, that he wrapped it in a handkerchief and “ I said ‘ You know he ain’t going to bury no money anyhow. ’ ”

Whatever may have prompted this woman to enter the automobile on the first occasion, nothing in her testimony- — • which is all that there is upon this point — indicates that she was induced to part with any of this money by any pretense or false representation. What was said about burying the money was spoken after she had been pushed into the automobile when she re-entered it the second time and after her purse had been taken from her by force. There is thus no basis for a contention that appellant was convicted in violation of section 1290-a of the Penal Law.

The only other point which merits attention is the argument that Jennie Finch’s identification of appellant Brown was unfair as a matter of law. She -testified on direct examination that she went to the 103rd Precinct Station two or three weeks after the theft and was taken into a room adjacent to the one in which the defendants were in custody. She looked through a small window at the suggestion of the police officer into the other room, and identified the defendants. There were three people in the other room, the two defendants, both negroes, along with another individual, a detective, who was white. It does not appear whether they had an attorney at that time. On June 12,1967, the United States Supreme -Court decided the cases of United States v. Wade, Stovall v. Denno and Gilbert v. California (388 U. S. 218, 293, 263). It was held in Wade that where the accused has a lawyer, the Sixth Amendment requires that he be given an opportunity to be present at an identification of an accused in a police line-up. In Wade the prosecution did not offer into evidence the testimony of a prior identification, which may be done under our section 393-b of the Code of Criminal Procedure, but relied upon the identification made by the complaining witness of the accused in open court at the time of the trial. The earlier identification in the police line-up was elicited by defense counsel upon cross-examination of the complaining witnesses. The Supreme Court ruled that the exhibition of the defendant to the witnesses in the police line-up prior to trial would not vitiate identification by the complaining witnesses at the trial if the prosecution could establish that the identification was made independently of the prior identification at the police station in the police line-up. The Stovall case held, however, in line with Linkletter v. Walker (381 U. S. 618), Tehan v. Shott (382 U. S. 406) and Johnson v. New Jersey (384 U. S. 719) that the Wade holding is not retroactive, either by postconviction remedy or upon direct appeal. The Wade decision, therefore, does not aid appellant on this appeal.

It is further contended that, regardless of the Wade rule, it was unfair to have allowed evidence of identification where there were only three people in the line, two of them being defendants, who were negroes, and the third being white. Under the circumstances of this case there was no prejudice in the identification of appellant by the complainant.

The judgment of conviction should be affirmed.

Chief Judge Fuld

(concurring). The court’s analysis of the record demonstrates that no misrepresentations were used to effect or facilitate the theft charged against the defendant and, consequently, I agree that the testimony given by the victim was properly received in evidence. I agree also that the procedure employed by the police in procuring the victim’s initial identification of the defendant was not prejudicial but I consider that procedure so unfair as to require additional comment.

The defendant was convicted of grand larceny for having taken $950 from a woman who was in his company for a considerable length of time before and during the commission of the crime. After the defendant and a codefendant were in custody, the victim identified them at the police station by looking through a “ peep hole ” into a room in which they and a detective were the only persons present. And she again identified them at the trial.

Absent “imperative” circumstances necessitating resort to such a procedure, the practice of having a witness secretly view, for identification purposes, only the very suspect whom the police have taken into custody for the crime can be “so unnecessarily suggestive and conducive to irreparable mistaken identification ” as to amount to a denial of due process of law. (Stovall v. Denno, 388 U. S. 293, 302; cf. People v. Williams, 3 A D 2d 967; People v. Conley, 275 App. Div. 743; People v. Gerace, 254 App. Div. 135; see, also, 3 Wigmore on Evidence [3d ed.], § 786a.) However, in the case before us, since the victim had ample opportunity to observe the defendant prior to and during the commission of the crime, it is manifest that her courtroom testimony identifying him was not based on, or tainted by, the potentially misleading circumstances which attended her earlier identification of him at the police station. Accordingly, the pretrial identification, impermissible though it be, may be disregarded as harmless error (Code Crim. Pro., § 542).

Opinion by Judge Van Voorhis. Ail concur, Chief Judge Fold in a separate opinion in which Judges Burke, Scileppi and Keating concur.

Judgment affirmed.  