Opinion
Submitted April 7, 2000.
May 15, 2000.
Appeal by the defendant (1) from a judgment of the Supreme Court, Kings County (Ruchelsman, J.), rendered July 13, 1998, convicting him of burglary in the second degree, upon a jury verdict, and imposing sentence, and (2), by permission, from an order of the same court, dated July 27, 1999, which denied, without a hearing, his motion pursuant to CPL article 440 to vacate the judgment.
Cristina D'Amato Arvoy, White Plains, N.Y., for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Cynthia Kean of counsel), for respondent.
WILLIAM D. FRIEDMANN, J.P., GABRIEL M. KRAUSMAN, DANIEL F. LUCIANO, ROBERT W. SCHMIDT, JJ.
DECISION ORDER
ORDERED that the judgment and the order are affirmed.
The defendant's claim that the evidence was legally insufficient is unpreserved for appellate review (see, CPL 470.05). In any event, viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt (see, People v. Barnes, 50 N.Y.2d 375; People v. Mazer, 208 A.D.2d 956; see also, People v. Martinez, 245 A.D.2d 530). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15).
The defendant's contention that he was entitled to a circumstantial evidence charge is without merit. The Supreme Court did not err in failing to charge the jury on circumstantial evidence since such a charge is not required when a case is supported by both circumstantial and direct evidence (see, People v. Daddona, 81 N.Y.2d 990; People v. Ruiz, 248 A.D.2d 647).
The Supreme Court providently exercised its discretion in not granting an evidentiary hearing pursuant to CPL 440.30 based on a claim of ineffective assistance of counsel. The record demonstrates that the failure of the defendant's trial counsel to argue the defense now raised by the defendant may well have been a tactical decision (see, People v. Rivera, 71 N.Y.2d 705; People v. Satterfield, 66 N.Y.2d 796).
FRIEDMANN, J.P., KRAUSMAN, LUCIANO and SCHMIDT, JJ., concur.