Opinion
July 15, 1994
Appeal from the Oneida County Court, Buckley, J.
Present — Green, J.P., Balio, Lawton, Wesley and Boehm, JJ.
Judgment unanimously affirmed. Memorandum: The evidence, viewed in the light most favorable to the People (see, People v. Contes, 60 N.Y.2d 620, 621), is sufficient to support defendant's conviction of felony murder (Penal Law § 125.25), and the verdict is not contrary to the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495). The evidence is also sufficient to establish that the shotgun used in the robbery was operable (see, People v Maeweather, 159 A.D.2d 1008, lv denied 76 N.Y.2d 738). Because the evidence against defendant was both direct and circumstantial, a circumstantial evidence charge incorporating the moral certainty language was not required (see, People v. Daddona, 81 N.Y.2d 990, 992; People v. Barnes, 50 N.Y.2d 375, 380-381; People v Lawrence, 186 A.D.2d 1016, lv denied 81 N.Y.2d 790).
County Court did not abuse its discretion in denying defendant's motion for a separate trial (see, People v Mahboubian, 74 N.Y.2d 174, 183-184; People v. Treadwell, 206 A.D.2d 861 [decided herewith]) or in limiting cross-examination of a prosecution witness concerning a bank robbery that the witness denied committing (see, People v. Chatman, 186 A.D.2d 1004, lv denied 81 N.Y.2d 761). The court properly refused to permit defendant to introduce an FBI videotape of that bank robbery to impeach the credibility of that witness (see, People v. Inniss, 83 N.Y.2d 653, 658; People v. Pavao, 59 N.Y.2d 282, 288-289). The court also properly refused to permit defendant to question prospective jurors with regard to their understanding of the presumption of innocence (see, CPL 270.15 [c]; People v Boulware, 29 N.Y.2d 135, 141, cert denied 405 U.S. 995).
We reject defendant's challenges to the court's charge to the jury. The court properly instructed the jury on the crime of conspiracy (see, People v. McGee, 49 N.Y.2d 48, 57-58; People v Goldsmith, 127 A.D.2d 293, lv denied 70 N.Y.2d 711) and responded meaningfully to the jury's inquiries regarding accessorial liability (see, People v. Almodovar, 62 N.Y.2d 126, 131). No missing witness charge was warranted (cf., People v. Kitching, 78 N.Y.2d 532; People v. Gonzalez, 68 N.Y.2d 424).
We have examined defendant's remaining contentions and find them to be lacking in merit.