Opinion
May 12, 1992
Appeal from the Supreme Court, Bronx County (George Covington, J.).
Defendant's argument that the court did not give a circumstantial evidence charge is unpreserved, neither a request to so charge nor an objection to the charge as given having been made (CPL 470.05; People v. Alexander, 153 A.D.2d 507, 509, affd 75 N.Y.2d 979). In any event, were we to review in the interest of justice, we would find that the failure to give such a charge does not warrant reversal. A circumstantial evidence charge is not given because direct evidence is deserving of more weight than circumstantial evidence, but rather to advise the jury of its obligation to carefully draw inferences from the evidence (supra). There can be no doubt that the jury understood that defendant's guilt turned on whether the evidence showed that he was the person who shot the victim, and the evidence of guilt, which does exclude beyond a reasonable doubt every hypothesis of innocence, was compelling (see, People v Cleague, 22 N.Y.2d 363, 367). Defendant's motive to avenge a perceived insult, his opportunity and means, his presence on the scene armed with what appeared to be a weapon moments after the shooting, and his attempted subornation of perjury were all established.
Also without merit is defendant's argument that a prior inconsistent statement of a prosecution witness was inadmissible on direct examination because the witness's testimony at trial did not tend to disprove the prosecutor's case (CPL 60.35). The statement was properly admitted, not because it was proof of defendant's guilt, but because it showed that defendant had attempted to influence the witness to give favorable testimony (People v. Whaley, 144 A.D.2d 510, lv denied 73 N.Y.2d 897).
Defendant's supplemental argument that his counsel was barred from establishing facts that would have impugned the credibility of prosecution witnesses is unpreserved. Trial counsel's lengthy review of the court's in limine ruling was not clearly a protest, and even if it were viewed as such, leaves too much to speculation for proper appellate review (see, People v. Cruz, 171 A.D.2d 607, lv denied 78 N.Y.2d 921). Further, while the court was not required to employ the procedure set forth in People v Sandoval ( 34 N.Y.2d 371) to determine the scope of cross-examination of the People's witnesses, it was not precluded from making an in limine ruling (People v. Ocasio, 47 N.Y.2d 55, 59), and the record does not support the conclusion that the court's rulings were unjust (see, People v. Carmack, 44 N.Y.2d 706; People v. Sorge, 301 N.Y. 198, 202). Also, while cross-examination concerning acts underlying dismissed charges is permissible (see, People v. Rahming, 26 N.Y.2d 411, 419), defendant's desire to cross-examine the witnesses in regard to general credibility did not automatically entitle him to information that was confidential (People v. Tissois, 72 N.Y.2d 75, 79; People v. Gissendanner, 48 N.Y.2d 543, 548-550).
We have considered defendant's remaining claims, including those raised in his supplemental brief, and find them to be unpreserved or without merit.
Concur — Rosenberger, J.P., Wallach, Ross, Asch and Kassal, JJ.