People v. Rivera

168 A.D.2d 349, 562 N.Y.S.2d 672, 1990 N.Y. App. Div. LEXIS 15493

Opinion

Judgment, Supreme Court, New York County (Joan Carey, J.), rendered on May 10, 1988, convicting defendant, after a jury trial, of burglary in the third degree, criminal possession of stolen property in the fifth degree and possession of burglar’s tools, and sentencing him, as a second felony offender, to concurrent terms of imprisonment of 2 to 4 years on the burglary count and one year on the remaining counts, unanimously affirmed.

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 NY2d 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.