Opinion
June 25, 1990
Appeal from the Supreme Court, Kings County (Lombardo, J.).
Ordered that the judgment is affirmed.
On the instant appeal, the defendant argues that the court erred when it failed to charge that guilt had to be proven to a "moral certainty". Preliminarily, we note that this argument has not been preserved for appellate review (CPL 470.05; People v. Hoke, 62 N.Y.2d 1022; People v. Udzinski, 146 A.D.2d 245, 248-252). In any event, this argument must be rejected on the merits. The evidence against the defendant was both direct and circumstantial, and accordingly, a special instruction regarding circumstantial evidence was not required (see, People v. Ruiz, 52 N.Y.2d 929; People v. Barnes, 50 N.Y.2d 375; People v. Lilly, 158 A.D.2d 622; People v. Ellis, 146 A.D.2d 709).
The defendant also argues that the trial court repeatedly criticized defense counsel's conduct in front of the jury, and thereby deprived him of a fair trial. We disagree. The record clearly indicates that the court's actions were provoked by defense counsel's persistent misconduct in disregarding the court's evidentiary rulings, and in arguing with the court over its rulings. Where a defense counsel engages in tactics which are "designed to disrupt and to infuriate" the court, the "defendant may not, absent other circumstances, successfully allege he was deprived of a fair trial" (People v. Gonzalez, 38 N.Y.2d 208, 210; People v. Cuba, 154 A.D.2d 703; see also, People v. Schneider, 100 A.D.2d 733).
We have examined the defendant's other claims, including those raised in his supplemental pro se brief, and find them to be either unpreserved for appellate review, harmless beyond a reasonable doubt or without merit (see, CPL 470.05; People v. Crimmins, 36 N.Y.2d 230; People v. Reynolds, 132 A.D.2d 632; see also, People v. Melendez, 55 N.Y.2d 445; People v. Yut Wai Tom, 53 N.Y.2d 44, 57; People v. Jemmott, 144 A.D.2d 694; People v Johnson, 130 A.D.2d 766; People v. MacCall, 122 A.D.2d 79). Mangano, P.J., Lawrence, Balletta and O'Brien, JJ., concur.