Opinion
March 29, 2000.
Appeal from Judgment of Monroe County Court, Maloy, J. — Burglary, 3rd Degree.
PRESENT: PIGOTT, JR., P. J., GREEN, WISNER, SCUDDER AND KEHOE, JJ.
Judgment unanimously affirmed.
Memorandum:
County Court properly denied defendant's request for a circumstantial evidence charge. Where, as here, a case is based on both direct and circumstantial evidence of defendant's guilt, defendant is not entitled to a circumstantial evidence instruction ( see, People v. Roldan, 88 N.Y.2d 826, 827; People v. Daddona, 81 N.Y.2d 990, 992; People v. Jones [appeal No. 1], 256 A.D.2d 1172, lv denied 93 N.Y.2d 972; People v. Jacobsen, 255 A.D.2d 951, lv denied 93 N.Y.2d 972). Although the court erred in allowing defendant to be cross-examined concerning prior charges of which he was not convicted ( see, People v. Cook, 37 N.Y.2d 591, 596; People v. Isidron, 209 A.D.2d 718, 719; People v. Sigl, 124 A.D.2d 1053), the error is harmless. The proof of guilt is overwhelming and there is no significant probability that the jury would have acquitted defendant but for the improper cross-examination ( see, People v. Turner, 247 A.D.2d 821, lv denied 91 N.Y.2d 1013; see also, People v. Castaldi, 209 A.D.2d 961, lv dismissed 84 N.Y.2d 1029).