People v. Rodriguez

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 ofienses 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 NY2d 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 NY2d 989), in refusing to instruct the jury that reasonable doubt may be found in a lack of evidence (People v Washington, 124 AD2d 982, Iv denied 69 NY2d 718), and in permitting the prosecution to impeach its own witness (see, People v Fitzpatrick, 40 NY2d 44; People v Hickman, 148 AD2d 937, affd 75 NY2d 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 NY2d 230, 242). (Appeal from Judgment of Monroe County Court, Celli, J. — Attempted Murder, 2nd Degree.) Present — Callahan, J. P., Denman, Pine, Balio and Lawton, JJ.