Opinion
January 30, 1995
Appeal from the Supreme Court, Kings County (Moskowitz, J.).
Ordered that the judgment is affirmed.
Viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620), we find that it is legally sufficient to establish the defendant's guilt beyond a reasonable doubt (see, People v. Herring, 83 N.Y.2d 780; People v Ortiz, 76 N.Y.2d 446; People v. Wylie, 180 A.D.2d 774; People v Harvey, 175 A.D.2d 138). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt is not against the weight of the evidence (CPL 470.15).
The defendant has not preserved for appellate review his claim that the Supreme Court erred by not charging the jury on the issues of the agency defense and circumstantial evidence (see, CPL 470.05; People v. Weaver, 200 A.D.2d 696; People v Alexander, 172 A.D.2d 385; People v. Hall, 181 A.D.2d 791). In any event, there is no reasonable view of the evidence that would warrant having charged the jury on the agency defense (see, People v. Herring, supra; People v. Ortiz, supra). In addition, a circumstantial evidence charge is required only when the evidence of guilt is exclusively circumstantial, which is not the case here (see, People v. Ford, 66 N.Y.2d 428; People v. Pilgrim, 208 A.D.2d 868).
In view of the foregoing, there is no merit to the defendant's contention that he was denied the effective assistance of counsel due to the trial counsel's failure to request charges on the agency defense and circumstantial evidence. Bracken, J.P., Rosenblatt, O'Brien and Altman, JJ., concur.