Opinion
October 6, 1989
Appeal from the Supreme Court, Monroe County, Mark, J.
Present — Dillon, P.J., Boomer, Green, Lawton and Davis, JJ.
Judgment unanimously affirmed. Memorandum: Defendant was convicted of criminal possession of stolen property in the second degree and attempted grand larceny in the third degree after she and an accomplice attempted to purchase merchandise by use of a stolen American Express credit card. The People conceded that defendant never actually possessed the credit card, but argued that her possession was constructive. The jury was instructed that defendant could be found guilty of any of the charges either as a principal or as an accessory (Penal Law § 20.00).
The court properly instructed the jury concerning the elements of criminal possession of stolen property in the second degree, and there is no merit to defendant's argument that the evidence is insufficient to establish defendant's guilt of that offense. Additionally, defendant was not entitled to a missing witness charge with respect to the accomplice; it was established that the accomplice was unavailable and diligent efforts to locate him were unsuccessful (see, People v Gonzalez, 68 N.Y.2d 424, 428). Finally, any error in the admission of a hearsay statement by a relative of defendant was harmless. The evidence of defendant's guilt is overwhelming, and there is no significant probability that, but for the statement's admission, a different verdict would have resulted (see, People v Crimmins, 36 N.Y.2d 230, 243).