Opinion
September 20, 1990
Appeal from the Supreme Court, New York County (Herman Cahn, J.).
Defendant and his girlfriend, Diane Wong, moved into the Chelsea Hotel on July 26, 1984. A noted composer of music, 88-year-old Virgil Thomson, who was a long-term resident of the hotel, left his apartment unattended in late July while he vacationed in Europe. Soon afterwards, defendant and Wong moved to a room that was connected to Thomson's room by an airshaft. After moving into the new room, Wong observed defendant carrying boxes and suitcases clearly identifiable as belonging to Thomson into their room. Defendant told Wong, "I just made a big score." After moving out of the hotel on August 10th, Wong saw defendant give Huebner, defendant's friend, two suitcases he obtained while residing at the hotel and heard them discuss the percentage which defendant would receive from the sale of the suitcases.
On August 9, 1984, Thomson's secretary, Louis Rispoli, discovered that Thomson's apartment was burglarized. An empty manila envelope, which previously had contained an autographed Gertrude Stein book, was found on the floor in the apartment; the police attributed a latent footprint on this envelope as having been made by defendant. Defendant's fingerprint was also discovered on a filing cabinet in the apartment. A search of Huebner's premises uncovered part of Thomson's stolen property, including the suitcases and the Stein book. Other stolen property was recovered from another acquaintance of the defendant. Defendant, who had changed his appearance and moved to Maryland, was arrested on October 25, 1984.
Although defendant moved to vacate his conviction on the ground that the court failed to give a specific circumstantial evidence charge on the significance of the footprint found on the "Stein" envelope, this issue is unpreserved for our review inasmuch as no such charge was requested, and no exception to the charge as delivered was taken by the defendant (CPL 470.05; People v Willis, 107 A.D.2d 830). In any case, in denying defendant's motion, the court correctly held that on the facts of this case no specific instruction tailored to this particular piece of evidence was required beyond the general charge on circumstantial evidence.
Defendant contends that the prosecutor's use of Wong's Grand Jury testimony to refresh her recollection amounted to impeachment in violation of CPL 60.35 (People v. Kaplan, 24 A.D.2d 516). However, defendant's argument must be rejected since the prosecutor used the witness's Grand Jury minutes to refresh her recollection in good faith and the contents of the witness's statements were not disclosed to the jury (People v. Reed, 40 N.Y.2d 204, 207).
Defendant's remaining contentions are unpreserved and we decline to consider them in the interest of justice. Were we to review these issues we would find them meritless.
Concur — Murphy, P.J., Ross, Carro and Rosenberger, JJ.