Opinion
December 18, 1990
Appeal from the Supreme Court, New York County (Joan Carey, J.).
Defendant's conviction was supported by legally sufficient evidence. The evidence indicated that defendant entered a commercial van and removed a suitcase. A witness notified her husband, who followed defendant for approximately three blocks. The police arrived shortly and discovered defendant searching the suitcase beneath the exterior staircase of a residential building. The owner of the van indicated that the vehicle was broken into and that defendant did not have permission or authority to remove the suitcase. The jury was entitled to reject the defense theory that his possession was innocent and that he picked up the suitcase on the street near the van. Further, any doubt as to identity was dispelled by defendant's statement placing him at the scene. In this regard, any error which arose from the failure to instruct the jury that questioning regarding a prior out-of-court statement of defendant could be considered only to impeach the testimony of a witness (see, CPL 60.35; People v. Saez, 69 N.Y.2d 802) must be considered harmless.
We have reviewed defendant's remaining contentions and find them to be without merit.
Concur — Rosenberger, J.P., Asch, Kassal, Wallach and Smith, JJ.