Opinion
March 21, 1988
Appeal from the Supreme Court, Kings County (Moskowitz, J.).
Ordered that the judgments are affirmed.
On the instant appeals, both defendants argue that (1) they were denied effective assistance of trial counsel, (2) the court committed reversible error in refusing to give a circumstantial evidence charge to the jury, and (3) the court committed reversible error when it admitted into evidence, as excited utterances, the deceased's statements to his family shortly after the crime. We disagree.
A review of the record indicates that both counsel, inter alia, thoroughly cross-examined the People's witnesses, made appropriate objections, and presented serious alibi defenses. Under the circumstances, it is clear that both defendants were "afforded meaningful representation" (People v. Satterfield, 66 N.Y.2d 796, 800) and that the defendants have confused "true ineffectiveness with mere losing tactics" (People v. Baldi, 54 N.Y.2d 137, 146).
Nor did the trial court err in failing to give a circumstantial evidence charge to the jury. A circumstantial evidence charge is required only when the prosecution relies wholly upon circumstantial evidence to establish the guilt of the accused (People v. Schermerhorn, 125 A.D.2d 729, 731, lv denied 69 N.Y.2d 955). Where both direct and circumstantial evidence are used to establish the defendants' guilt, as occurred in the case at bar, a circumstantial evidence charge need not be given (People v. Barnes, 50 N.Y.2d 375).
Finally, the deceased's statements to his family, shortly after the crime, were properly admitted into evidence as excited utterances, pursuant to the standard set forth by the Court of Appeals in People v. Edwards ( 47 N.Y.2d 493).
We have reviewed the remaining arguments raised solely by the defendant Rosario and find them to be without merit (see, People v. Contes, 60 N.Y.2d 620; People v. Shapiro, 117 A.D.2d 688, lv denied 67 N.Y.2d 950; People v. Marks, 6 N.Y.2d 67; People v Roopchand, 107 A.D.2d 35, affd 65 N.Y.2d 837; People v. Suitte, 90 A.D.2d 80). Mangano, J.P., Bracken, Kooper and Spatt, JJ., concur.