Opinion
March 7, 1988
Appeal from the Supreme Court, Queens County (Lakritz, 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 was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. 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 (CPL 470.15).
The evidence adduced at the Wade hearing clearly supports the hearing court's determination that an independent basis existed for each eyewitness' in-court identification. The uncontradicted Wade testimony was that the two eyewitnesses observed the defendant immediately prior to the shooting for 15 to 20 minutes, at close range, in the light of a street lamp, as they conversed. The hearing court properly denied that branch of the defendant's omnibus motion which was to suppress the complainant's hospital identification of the defendant in view of the fact that the complainant knew the defendant prior to the shooting. Therefore, the showup procedure used was "merely confirmatory" so that the "issue of suggestiveness is not relevant" (see, People v Johnson, 124 A.D.2d 748, 749, lv denied 69 N.Y.2d 713; People v Fleming, 109 A.D.2d 848).
We reject the defendant's contention that the trial court erred in denying his request for further instructions on the identification issue (see, People v. Whalen, 59 N.Y.2d 273, 279; People v. Smith, 100 A.D.2d 857, lv denied 62 N.Y.2d 810; see also, People v. Rodriguez, 130 A.D.2d 522, lv denied 70 N.Y.2d 655).
Finally, the defendant was not entitled to a circumstantial evidence charge since the prosecution's case consisted of direct as well as circumstantial evidence (see, People v. Barnes, 50 N.Y.2d 375; People v. Bussey, 131 A.D.2d 494). Moreover, it is not necessary that the words "moral certainty" be used in a circumstantial evidence charge (see, People v. Ford, 66 N.Y.2d 428, 441; People v. Gonzalez, 54 N.Y.2d 729). Bracken, J.P., Weinstein, Rubin and Sullivan, JJ., concur.