Opinion
January 3, 1991
Appeal from the Supreme Court, Bronx County (Ivan Warner, J.).
Where the People's case was based solely upon circumstantial evidence, viz., two fingerprints lifted from a bottle in the burglarized apartment that had previously contained approximately $100 in change (see, People v Walker, 119 A.D.2d 521, 522), the trial court erred in refusing the defense request for a circumstantial evidence charge (People v Silva, 69 N.Y.2d 858, 859). Unlike People v Kurtish ( 165 A.D.2d 670), where the trial court failed to instruct the jury on the standard to be applied in cases where the evidence is wholly circumstantial, but gave a limited circumstantial evidence charge which adequately conveyed the appropriate standard to the jury, no such charge was given here. In remanding this case for a new trial, we leave it to the sound discretion of the trial court to decide the appropriate sanction to be imposed in light of the People's loss of the latent fingerprints (People v Kelly, 62 N.Y.2d 516, 521). In view of the foregoing, it is unnecessary to reach or determine defendant's other contentions.
Concur — Kupferman, J.P., Ross, Carro, Asch and Ellerin, JJ.