Opinion
June 1, 1987
Appeal from the Supreme Court, Kings County (Beldock, J.).
Ordered that the judgment is affirmed.
Contrary to the defendant's present contention, the photographic evidence depicting the deceased victim was probative on the issues of identity and intent and was both illustrative and corroborative of the testimony adduced from prosecution witnesses (see, e.g., People v Scott, 126 A.D.2d 582; People v Sims, 110 A.D.2d 214, lv denied 67 N.Y.2d 657; People v Winchell, 98 A.D.2d 838, affd 64 N.Y.2d 826; People v Millson, 93 A.D.2d 899). Since the photographs were not offered solely to inflame the jury's passions (see, People v Pobliner, 32 N.Y.2d 356, rearg denied 33 N.Y.2d 657, cert denied 416 U.S. 905; People v Medina, 120 A.D.2d 749, lv denied 68 N.Y.2d 915), we discern no error in their admission by the trial court.
Additionally, we reject the defendant's contention that the People failed to prove her guilty of attempted murder in the second degree beyond a reasonable doubt. Upon the exercise of our factual review power, we conclude that the defendant's acts of arming herself, forcibly entering the apartment with her companions, and participating substantially in the stabbing of both victims provide an ample basis upon which to sustain the jury's verdict (see, e.g., People v Hayes, 117 A.D.2d 621, lv denied 68 N.Y.2d 668; People v Williams, 114 A.D.2d 385, lv denied 67 N.Y.2d 952; People v Bell, 94 A.D.2d 894, affd 63 N.Y.2d 796).
Similarly unavailing is the defendant's claim that the trial court's charge concerning circumstantial evidence was erroneous because it lacked a "moral certainty" instruction. Initially, since the defendant did not request such an instruction or except to the charge as given, she has failed to preserve the issue for appellate review as a matter of law (see, People v Contes, 60 N.Y.2d 620; People v McLean, 123 A.D.2d 888, lv denied 69 N.Y.2d 748). In any event, the defendant was not entitled to an instruction to this effect, as the prosecution's case consisted of direct as well as circumstantial evidence (see, People v Johnson, 65 N.Y.2d 556, rearg denied 66 N.Y.2d 759; People v Ruiz, 52 N.Y.2d 929; People v Barnes, 50 N.Y.2d 375).
We have considered the defendant's remaining contentions and find them to be without merit. Brown, J.P., Weinstein, Rubin and Kooper, JJ., concur.