Appeal from a judgment of the County Court of Broome County (Smith, J.), rendered May 27, 1993, upon a verdict convicting defendant of two counts of the crime of grand larceny in the fourth degree.
On October 17, 1992, a man and a woman were videotaped shoplifting in the children’s department of a Sears Roebuck and Company store (hereinafter Sears), located in the Oakdale Mall in the Village of Johnson City, Broome County. The security manager, Patricia Russell, followed the two suspects into the parking lot, where they both dropped their bags and fled. The merchandise in the bags was brought back to the store where the merchandise from both bags was photographed and the value totaled on an adding machine at $1,001.58; the photographs of the merchandise and the adding machine tape were received in evidence during the trial.
On November 28, 1992, David Arseneau, a security officer at the Montgomery Ward store (hereinafter Wards) located in the
Defendant testified before the Grand Jury that he stole merchandise from both Sears and Wards on the dates in question; however, he stated that he should not be held accountable for merchandise stolen by Sullivan from each store. Defendant was subsequently indicted by the Grand Jury on two counts of grand larceny in the fourth degree. In count one, defendant and Sullivan were charged with aiding and abetting one another on November 28, 1992, and in count two, defendant was charged with having been aided and abetted by an accomplice on October 17, 1992, both counts being in violation of Penal Law § 20.00 and § 155.30. After a jury trial, defendant was convicted of both counts charged in the indictment. Defendant was sentenced as a second felony offender to concurrent terms of incarceration of IV2 to 3 years on each count. Defendant appeals.
We affirm. Initially we note that the stolen Wards merchandise, the adding machine tape and photographs were properly admitted into evidence. Contrary to defendant’s contention, strict proof of the chain of custody was not required because clothing is not fungible (see, People v Wynn,
Defendant’s contention that the People failed to prove his guilt beyond a reasonable doubt and that the verdict was against the weight of the evidence is without merit. Viewing the evidence in the light most favorable to the People (see, People v Malizia,
Finally, we reject defendant’s contention that County Court erred by not granting a motion for a mistrial upon the ground that a prosecution witness improperly testified that she had previously identified defendant at a police station show-up. County Court directed the jury to disregard the testimony and denied the motion. Notably, there is no question that defendant was the coperpetrator; he admitted that he was the man seen leaving Sears and the man apprehended outside of Wards. If any error was committed in this regard, it was clearly harmless.
Cardona, P. J., Mercure, White and Peters, JJ., concur. Ordered that the judgment is affirmed.
