72 A.D.2d 857 | N.Y. App. Div. | 1979
Appeal from a judgment of the County Court of Albany County, rendered March 18, 1975, upon a verdict convicting defendant of the crime of criminal possession of a forged instrument in the second degree. A jury has determined that on the afternoon of September 25, 1972 defendant cashed a stolen American Express money order in the sum of $150 at a Sears Roebuck store in Colonie, New York, upon which the signature of the payee, Finley Wark, was known by him to be forged. In reaching this decision the jury obviously discredited his alibi defense and, considering the nature of the proof against him, we reject the argument that its verdict was contrary to the weight of the evidence. Defendant was identified at trial by a store employee and the cashier to whom the instrument had been offered. Moreover, through the use of a device known as a "regiscope”, the cashier had taken a photograph of the incident depicting the individual who had presented the money order and it too was introduced into evidence. Of the remaining contentions set forth in defendant’s brief and supplemental pro se brief, only two merit additional comment. We agree with the trial court’s conclusion that the pretrial identification procedures employed by the police were not unduly suggestive. The cashier’s observation of her regiscope photograph did not taint the process and, in any event, clear and convincing evidence establishes that the in-court recognition of the accused was based on her personal confrontation with the defendant, as was the identification made by the other store employee (see People v Keene, 57 AD2d 1020). Although nearly two years elapsed between defendant’s indictment and the commencement of trial, he was represented by counsel throughout the proceedings and no complaint was ever voiced about this seeming delay in prosecution. The reasons and responsibility therefor are unknown and we conclude that the issue has not been adequately preserved for review (see People v Primmer, 46 NY2d 1048; People v Adams, 38 NY2d 605; but cf. Barker v Wingo, 407 US 514). Judgment affirmed. Mahoney, P. J., Sweeney, Kane, Staley, Jr., and Herlihy, JJ., concur.
