People v. Josan

— Appeal by defendant from a judgment of the Supreme Court, Queens County (Rotker, J.), rendered November 22, 1983, convicting him of criminal possession of stolen property in the third degree, after a nonjury trial, and imposing sentence.

Judgment affirmed, and case remitted to the Supreme Court, Queens County, for further proceedings pursuant to CPL 460.50 (subd 5).

Defendant’s prior conviction on the same indictment was reversed by this court and a new trial was ordered due to trial errors relating to the giving of a missing witness charge and allowing a statement to be admitted as a declaration against penal interest (People v Josan, 92 AD2d 902). However, we found on that appeal, as we do now, that the People adduced sufficient evidence of defendant’s guilt.

Defendant’s testimony at the prior jury trial which resulted in that conviction could be used by the People as part of their direct case during the trial which resulted in the instant conviction (see United States v Grunewald, 164 F Supp 644). Under the circumstances of this case, that testimony was not direct evidence (see People v Burke, 62 NY2d 860; People v Marin, 102 AD2d 14, 26). Nevertheless, it could be used by the trier of fact as circumstantial evidence in reaching its determination. We have reviewed defendant’s other contentions and find them to be without merit. Brown, J. P., Niehoff, Rubin and Fiber, JJ., concur.