The People of the State of New York, Respondent, v. Robert Spigner, Appellant

The People of the State of New York, Respondent, v Robert Spigner, Appellant. [609 NYS2d 593] [MAJORITY] —Judgment, Supreme Court, Bronx County (David Stadtmauer, J.), rendered January 22, 1991, convicting defendant, after a jury trial, of robbery in the first degree, and sentencing him, as a second felony offender, to a term of 10 to 20 years, unanimously affirmed. The trial court properly allowed the in-court identification of defendant by a store clerk, notwithstanding her inability on two prior occasions to pick his picture out of a photo array. The prior inability to identify defendant related to the weight, and not admissibility, of the identification (see, People v Cruz, 167 AD2d 306, lv denied 77 NY2d 959). The photo array and lineup procedures were not unduly suggestive, the fill-ins having been of similar height, weight and facial characteristics as defendant (see, People v Gonzalez, 173 AD2d 48, 56, lv denied 79 NY2d 1001). The records shows that defendant waived his right to be present during the read-back of testimony during jury deliberations. We have considered defendant’s remaining contentions and find them to be without merit. Concur — Murphy, P. J., Sullivan, Rosenberger, Asch and Tom, JJ.