Opinion
March 16, 1990
Appeal from the Monroe County Court, Egan, J.
Present — Dillon, P.J., Boomer, Green, Balio and Davis, JJ.
Judgment unanimously affirmed. Memorandum: The evidence, viewed in the light most favorable to the prosecution (see, People v Ford, 66 N.Y.2d 428), was legally sufficient to support defendant's convictions for burglary in the second degree, petit larceny and assault in the second degree. An intent to commit larceny could be inferred from evidence that items were taken from the residence and from evidence of defendant's flight therefrom (see, People v Mackey, 49 N.Y.2d 274, 279-280), and the testimony of some prosecution witnesses, though inconsistent, was not incredible as a matter of law (see, People v Walker, 155 A.D.2d 916).
The court properly rejected defendant's attempt to introduce as evidence his written statement made to police shortly after he was taken into custody. The statement was not contrary to defendant's penal interest, and even if it was, there was an obvious motive to fabricate, no independent evidence to support defendant's version of the events, and no demonstration that defendant was aware when he made the statement that it was contrary to his interest (see, People v Shortridge, 65 N.Y.2d 309, 313; People v Maerling, 46 N.Y.2d 289, 298-299).
The court did not err in refusing to instruct the jury regarding circumstantial evidence and that such evidence must exclude to a moral certainty every hypothesis but guilt. That evidentiary standard applies only where the case is based solely upon circumstantial evidence; it does not apply where, as here, the People proffered both direct and circumstantial evidence to demonstrate the defendant's guilt (People v Barnes, 50 N.Y.2d 375, 380; People v Sabella, 35 N.Y.2d 158, 168). Also without merit is defendant's contention that the court's instruction on accomplice liability changed the theory of prosecution. "There is no distinction between liability as a principal and criminal culpability as an accessory and the status for which the defendant is convicted has no bearing upon the theory of the prosecution" (People v Duncan, 46 N.Y.2d 74, 79-80, rearg denied 46 N.Y.2d 940, cert denied 442 U.S. 910; see also, People v Katz, 209 N.Y. 311, 325-326).
The court did not err in denying defendant's motion to suppress his written statement. We also conclude that the trial court did not abuse its discretion in ruling that, if defendant testified, he could be cross-examined regarding his prior conviction on a burglary charge (see, People v Alvino, 71 N.Y.2d 233).