Opinion
March 8, 1991
Appeal from the Monroe County Court, Celli, J.
Present — Callahan, J.P., Denman, Pine, Balio and Lawton, JJ.
Judgment unanimously affirmed. Memorandum: There is no merit to defendant's contention that the court's instructions were so disjointed or convoluted that the jury was not apprised of the essential elements of each of the offenses charged. The court's instruction adequately informed the jury of the governing legal principles, thereby enabling it to reach a verdict (see, People v Canty, 60 N.Y.2d 830).
The trial court did err in instructing the jury, without a request by defendant, that no unfavorable inference should be drawn from defendant's failure to testify (see, People v Koberstein, 66 N.Y.2d 989), in refusing to instruct the jury that reasonable doubt may be found in a lack of evidence (People v Washington, 124 A.D.2d 982, lv denied 69 N.Y.2d 718), and in permitting the prosecution to impeach its own witness (see, People v Fitzpatrick, 40 N.Y.2d 44; People v Hickman, 148 A.D.2d 937, affd 75 N.Y.2d 891). However, those errors were harmless. Identity of the perpetrator was the principal issue at trial. Proof of defendant's guilt, including the particularly strong and convincing identification testimony of the victim and an eyewitness, was overwhelming, and there is no significant probability that, absent those errors, the jury would have acquitted the defendant (see, People v Crimmins, 36 N.Y.2d 230, 242).