Criminal Law · MBE-tested
The People of the State of New York, Respondent, v. Frank Webster, Appellant
204 A.D.2d 984614 N.Y.S.2d 352·New York Supreme Court, Appellate Division·1994·NY
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Opinion
The People of the State of New York, Respondent, v Frank Webster, Appellant.
[614 NYS2d 352]
[MAJORITY]
—Judgment unanimously affirmed. Memorandum: Supreme Court did not err in refusing to give a circumstantial evidence instruction that the evidence must exclude to a moral certainty every reasonable hypothesis but guilt. That evidentiary standard applies only to a case based entirely upon circumstantial evidence (see, People v Daddona, 81 NY2d 990, 992; see also, People v Goss, 204 AD2d 984 [decided herewith]; cf., People v Silva, 69 NY2d 858, 859; People v Ford, 66 NY2d 428). It does not apply where, as here, the People proffered both direct and circumstantial evidence to prove defendant’s guilt (see, People v Daddona, supra; People v Barnes, 50 NY2d 375, 379-380; People v Miller, 167 AD2d 958, Iv denied 77 NY2d 909; People v Barnes, 162 AD2d 1039, 1040, Iv denied 76 NY2d 890; People v Brown, 159 AD2d 956, 957, Iv denied 78 NY2d 1009). (Appeal from Judgment of Supreme Court, Monroe County, Bergin, J.—Criminal Possession Forged Instrument, 2nd Degree.) Present—Denman, P. J., Lawton, Fallon, Doerr and Davis, JJ.