Opinion
October 2, 1989
Appeal from the Supreme Court, Queens County (Sherman, J.).
Ordered that the judgment is affirmed.
The trial court erred in excluding, as hearsay, testimony offered to circumstantially prove the defendant's state of mind (see, Matter of Bergstein v Board of Educ., 34 N.Y.2d 318; People v Valentin, 130 A.D.2d 529). The defendant sought to establish that, based upon his conversation with "Shorty", he believed he had permission to enter the complainant's apartment and remove her property. We conclude that this error was harmless because of the overwhelming proof of the defendant's guilt (see, People v Valentin, supra). Moreover, the testimony would have been cumulative since the jury heard other evidence with respect to the defendant's state of mind (see, People v Luberoff, 150 A.D.2d 802; People v Felton, 133 A.D.2d 232; People v Rivera, 101 A.D.2d 981, affd 65 N.Y.2d 661). The defendant testified that Shorty had the keys to the complainant's apartment and that he did not know that a burglary was taking place.
Furthermore, the defendant's contention that he was deprived of a fair trial by the court's questioning of him during his direct testimony is without merit. Limited interference by the Trial Judge in the questioning of a witness is permissible in order to clarify issues (see, People v Yut Wai Tom, 53 N.Y.2d 44; People v Nevarez, 141 A.D.2d 861; People v McCoy, 122 A.D.2d 957). The court ameliorated any possible prejudice to the defendant by instructing the jury that it must disregard any impression gained from the questions that the court had an opinion as to the guilt or innocence of the defendant (see, People v McCoy, supra). Thompson, J.P., Bracken, Kunzeman and Rubin, JJ., concur.