Opinion
October 6, 1992
Appeal from the Supreme Court, Bronx County (Robert L. Cohen, J.).
Defendant's contention that the court improperly failed to give a circumstantial evidence charge is unpreserved for appellate review as a matter of law (People v Baez, 183 A.D.2d 481). Were we to review this contention in the interest of justice, we would conclude that defendant was not entitled to such a charge, because the evidence was not wholly circumstantial (People v Barnes, 50 N.Y.2d 375, 379-380). Here, the officer present at the crime scene observed defendant as he "backed out" of the victim's burglarized apartment. In view of this direct evidence and the strong inferences to be drawn therefrom, a circumstantial evidence charge was not required (People v Trail, 172 A.D.2d 320, lv denied 78 N.Y.2d 975).
Concur — Ellerin, J.P., Wallach, Ross and Kassal, JJ.