
    The People of the State of New York, Respondent, v Charles Rogers, Appellant.
    [790 NYS2d 914]—
   Appeal from a judgment of the Niagara County Court (Peter L. Broderick, Sr., J.), rendered April 5, 2001. The judgment convicted defendant, upon a jury verdict, of murder in the second degree and robbery in the first degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously reversed on the law and a new trial is granted on counts two and three of the indictment.

Memorandum: Defendant appeals from a judgment convicting him after a jury trial of murder in the second degree (Penal Law § 125.25 [3]) and robbery in the first degree (§ 160.15 [1]). Contrary to the contention of defendant, the conviction is supported by legally sufficient evidence and the verdict is not against the weight of the evidence (see People v Bleakley, 69 NY2d 490, 495 [1987]). Contrary to the further contention of defendant, County Court properly denied his motion to suppress statements he made to police and physical evidence (see People v Montana, 298 AD2d 934 [2002], lv denied 99 NY2d 561 [2002]).

We agree with defendant, however, that the court erred in its charge to the jury. The People’s case depended entirely upon circumstantial evidence (see People v Griffin, 121 AD2d 927, 927-928 [1986]; cf. People v Richardson, 186 AD2d 373, 373-374 [1992], lv denied 81 NY2d 846 [1993]), and therefore the court should have instructed the jury on the moral certainty standard of proof (see People v Mickewitz, 236 AD2d 793 [1997], lv denied 90 NY2d 861 [1997]; see also People v Sanchez, 61 NY2d 1022, 1023 [1984]). Because the evidence of guilt is not overwhelming, the error is not harmless (see Mickewitz, 236 AD2d at 793). In light of our conclusion, we see no need to address defendant’s remaining contentions. We therefore reverse the judgment of conviction and grant defendant a new trial on counts two and three of the indictment (see id.; Sanchez, 61 NY2d at 1023). Present — Pigott, Jr., P.J., Hurlbutt, Kehoe, Lawton and Hayes, JJ.  