People v. Burgos

• Decision Date: 25 February 1991
• Citation: 567 N.Y.S.2d 103,170 A.D.2d 689
• Parties: The PEOPLE, etc., Respondent, v. George BURGOS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 103

567 N.Y.S.2d 103

170 A.D.2d 689

The PEOPLE, etc., Respondent, v. George BURGOS, Appellant.

Supreme Court, Appellate Division Second Department.

Feb. 25, 1991.

Philip L. Weinstein, New York City (Allen Fallek, of counsel), for appellant.

Charles J. Hynes, Dist. Atty., Brooklyn (Jay M. Cohen, Sherry B. Bokser and Catherine Donahue of counsel, Joseph Tuchman on the brief), for respondent.

Before THOMPSON, J.P., and BROWN, SULLIVAN and MILLER, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Pesce, J.), rendered March 28, 1989, convicting him of burglary in the third degree, criminal possession of stolen property in the fifth degree, and petit larceny, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant argues that the proof of his guilt was entirely circumstantial and, therefore, the court committed reversible error in failing to give a circumstantial evidence charge. Since the defendant did not request a circumstantial evidence charge or object to the charge as given, he has failed to preserve this issue for appellate review (see CPL 470.05[2]; People v. King, 158 A.D.2d 471, 471-472, 550 N.Y.S.2d 921; People v. Chimelis, 156 A.D.2d 577, 577-578, 549 N.Y.S.2d 85). In any event, the testimony by the officers who responded to the scene of the crime constituted direct evidence of many of the principal facts in issue (see, People v. Licitra, 47 N.Y.2d 554, 558-559, 419 N.Y.S.2d 461, 393 N.E.2d 456; People v. Rumble, 45 N.Y.2d 879, 880, 410 N.Y.S.2d 806, 383 N.E.2d 108; People v. Bolino, 146 A.D.2d 790, 792, 537 N.Y.S.2d 268). Since the prosecutor's case relied on both direct and circumstantial evidence, the trial court did not err in failing to charge the "moral certainty" language or its equivalent by which purely circumstantial evidence cases are tested (see, People v. Johnson, 65 N.Y.2d 556, 561, 493 N.Y.S.2d 445, 483 N.E.2d 120; People v. Barnes, 50 N.Y.2d 375, 380, 429 N.Y.S.2d 178, 406 N.E.2d 1071, on remand 77 A.D.2d 922, 432 N.Y.S.2d 1016; People v. Licitra, supra; People v. Chimelis, supra; People v. King, supra ).

Viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt. Moreover, upon the exercise of our factual review power we are satisfied that the verdict of guilt was...