255 A.D. 941 | N.Y. App. Div. | 1938
Judgment of conviction affirmed. Memorandum: The principal question raised in this case was the identity of the defendant as one of three persons participating in a robbery in a retad store. A question of fact was presented. The identification of the defendant as one of the robbers by two witnesses with ample opportunity to observe the participants at the time of the robbery was clear and convincing. The defense was an alibi. The question was one for the jury and there is no reason on the record why the conviction should be disturbed. Neither do we think there was error in the denial of the motion for a new trial on the ground of newly-discovered evidence. The additional proof was not in our opinion sufficient to warrant a belief that its consideration would affect the result. No objection was offered to the reception of the testimony as to the presence of the defendant at the store on a certain previous occasion. AH concur. (The judgment convicts defendant of the crime of robbery, first degree.) Present — Sears, P. J., Crosby, Lewis, Cunningham and Taylor, JJ.