Opinion
March 31, 1999
Appeal from Judgment of Jefferson County Court, Merrell, J. — Manslaughter, 2nd Degree.
PRESENT: GREEN, J. P., HAYES, PIGOTT, JR., SCUDDER AND CALLAHAN, JJ.
Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him following a jury trial of manslaughter in the second degree (Penal Law § 125.15) and endangering the welfare of a child (Penal Law § 260.10) arising out of the death of the 2 1/2-year-old son of defendant's girlfriend, who had entrusted the child to defendant's care. Defendant contends that all of the People's evidence was circumstantial and that County Court therefore erred in failing to give a circumstantial evidence charge. Defendant concedes, however, that defense counsel did not request a circumstantial evidence charge and that no objection was made to the jury charge. Thus, defendant's contention is not preserved for our review ( see, CPL 470.05; People v. Clarke, 222 A.D.2d 1035, lv denied 88 N.Y.2d 934). Were we to address the merits, we would conclude that there is no merit to defendant's contention. Because defendant's admissions could be interpreted as "relevant admission[s] of guilt" ( People v. Rumble, 45 N.Y.2d 879, 880-881), there was both direct and circumstantial evidence of guilt ( see, People v. Burgos, 195 A.D.2d 978, lv denied 82 N.Y.2d 752; People v. Emery, 159 A.D.2d 992, lv denied 76 N.Y.2d 787), and the court was not required to give a circumstantial evidence charge ( see, People v. Daddona, 81 N.Y.2d 990, 992; People v. Barnes, 50 N.Y.2d 375, 379-380; People v. Burgos, supra). In addition, the court's charge on manslaughter in the second degree was in all respects proper ( see, 1 CJI[NY] 2d PL 125.15 [1], at 125-1019 — 125-1021). Finally, there is no merit to defendant's contention that the court's charge as a whole was so deficient that it deprived defendant of a fair trial.