Memorandum.
The order of the Appellate Division should be affirmed.
After a jury trial the defendant was convicted of felony murder and manslaughter. On appeal the Appellate Division dismissed the manslaughter count but affirmed the felony murder conviction by a divided court. By leave of the dissenter at the Appellate Division the defendant appеals from so much of the order as affirmed the felony murder conviction.
We find no merit to the dеfendant’s contention that the evidence is legally insufficient to sustain this conviction. On the reсord the jury could find that the defendant actively participated in a robbery during which his brother killеd the victim and that he was therefore guilty of felony murder.
The primary point on which the court below was divided relates to certain photographs of the victim taken before and аfter his death which the trial court permitted the prosecution to introduce over the dеfendant’s objection.
Photographs of the victim’s corpse are likely to arouse thе passions and resentment of the jury and thus should not be admitted unless they tend to prove or disprove some material fact in issue (People v Pobliner,
The same basic principles apply tо so-called “portraits” or photographs of the victim taken while he or she was alivе (People v Winchell,
In this case the majority at the Appellate Division found some relevance for the photographs of the deceased takеn at the scene of the crime and later at the autopsy. Although they found no justification fоr introducing the portrait, they concluded that this error was harmless. We agree.
The photographs of the victim’s body showed the nature of the injury and therefore tended to prove thаt the assailant acted with intent to inflict serious injury, an essential element of the manslaughter сount. The People were not bound to rely entirely on the testimony of the medical expert to prove this point and the photographs were admissible to elucidate and corroborate that testimony. The fact that the defendant was charged as an acсessory does not make this evidence irrelevant since the prosecutor was obligated to prove that the defendant shared this intent. Although the Appellate Division concluded that the People ultimately failed to prove that the defendant shared the assailant’s intent, the fact remains that it was an element of the offense and that the photos tendеd to establish it. With respect to this ruling it cannot be sáid that the court abused its discretion as a matter of law.
This is not true with respect to the portrait of the accused which the court alsо permitted the prosecutor to introduce at trial over the defendant’s objection. The trial court did not explain its ruling and the only argument the People offer is that the portrait was properly admitted "as a fair and accurate representation of what thе victim looked like on that fateful night before the murder.” But, in view of the fact that the victim’s appearance prior to the assault was not relevant to any issue at the trial, this argument is merit-less and the court’s decision to admit the portrait was clearly erroneous. Howevеr, like the majority at the Appellate Division, we have concluded that this error alonе was not so prejudicial as to require a new trial. Considering all the other evidence рroperly admitted at the trial, the admission of this portrait, although improper, must be deemеd harmless.
Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.
Order affirmed in a memorandum.