Wallach, J., concurs in a memorandum as follows: I agree with the conclusion reached by the majority for the following additional reasons.
Here is a case where Witness A saw defendant fire a shot in the direction of a victim she could not see. Simultaneously, Witness B heard a shot, and saw a man recoil as if about to fall. A bullet was later recovered from the body of that man, decedent David Madera.
The majority argues that this chain of evidence is "circumstantial”, so that it carries in its train the necessity of jury instructions from the trial court upon all the caveats for the cautious consideration of circumstantial evidence and the methodology for determining permissible inferences to be drawn therefrom. I do not agree that this evidence escapes the direct realm.
A useful illustration of the difference between direct and circumstantial evidence may be found in Fisch, New York Evidence (§ 161, at 91 [2d ed]): "For example, in order to *770establish that the accused is the person who murdered X, a prosecution witness testifies that he saw the defendant stab the deceased. This is testimonial evidence; it involves only a testimonial inference. But when a witness, in the same case, testifies that the accused offered him money as an inducement to absent himself from the trial, the evidence, although based upon testimony and therefore involving a testimonial inference, is circumstantial, for in order to reach a conclusion of guilt it becomes necessary to draw another inference of a different kind, namely an inference from the attempt to bribe to a consciousness of guilt, which in turn is used as the basis for an inference of guilt.” (Emphasis in original.)
The inference that the People seek to draw in this case is of a far lower order of attenuation (and is thus of "a different kind”) from the typical item of circumstantial evidence. The jury was asked to (and did) link the two simultaneous direct observations to the same immediately fatal injury and ensuing death. While it is true that both halves of the testimonial apple must be accepted for this evidence, standing alone, to lead anywhere, this interdependence does not render either half (or the whole apple) circumstantial. No succession of an intermediate fact (viz., the bribe in Fisch’s example) to an ultimate fact (viz., consciousness of guilt) is presented. Although this corpus of evidence is conveyed by two separate witnesses, this feature, in view of the simultaneity of the observations, does not transpose its nature from testimonial to inferential, and therefore from the direct to circumstantial category.
It follows that Criminal Term did not err in denying defendant’s request for a circumstantial evidence charge.