(dissenting). I dissent and vote to reverse and grant a new trial.
Defendant, who had no prior record of convictions, was convicted of being one of two participants in an armed robbery of a pharmacy. His identification and connection with the hold-up, which terminated in a gunfight and death of the robber who held the shotgun used in the robbery, was primarily through fleeting observations by the pharmacist and two police officers. Other police officer witnesses to the robbery, however, were unable to identify the defendant. The issue of identification was the only substantial issue in the ease. There was a defense of alibi.
It is established that permitting a police witness for the prosecution to testify as to his own prior identification of defendant from among several photographs at a police photo gallery was error. The Court of Appeals has so stated by way of alternative ratio decidendi and this court has so held. (People v. Cioffi, 1 N Y 2d 70, 73; People v. Giamario, 20 A D 2d 815, affd. 15 N Y 2d 939; People v. Middleton, 14 A D 2d 760; People v. Hunter, 12 A D 2d 835, 836-837.)
Defendant did not open up the issue of the prior identification by photograph. All he did was, to elicit on cross-examination, from the police officer that after a period in the squad room the officer had gone “ downtown at the photo gallery”, without purpose or result developed. On redirect examination, over strenuous objection and after extended colloquy, the forbidden evidence was admitted, not on the nonexistent ground that the matter had been opened up by defendant, but on the unsupportable ground that the evidence was admissible on the issue of identification.
In addition, the Trial Judge made a number of mistakes in the course of his charge, while marshalling the evidence for the jury. Various of these had to do with the disputed identification issue and, if true, would have been confirmatory of the prosecution’s version of events. As just one and the most serious example, the Trial Justice incorrectly referred to identifications as having been made by police officers whose testimony had in fact been that they could not identify defendant. He made other errors, which varied the testimony, to eliminate discrepancies in testimony of the prosecution witnesses and to introduce discrepancies in the testimony of defendant. The cumulative effect of these errors, in combination with the improper photograph identification testimony, was necessarily prejudicial. This court has so held in a like situation (People v. Middleton, supra; to the same effect, see People v. Hunter, supra, p. 837, decided in the Third Department).
*742Rabin, MeNally and Steuer, JJ., concur in Per Curiam opinion; Breitel, J. P., dissents in opinion, in which Stevens, J., concurs.Judgment of conviction affirmed.