Because the People's case depended entirely upon circumstantial evidence, the court erred in permitting the jury to decide whether to apply the moral certainty standard of proof, i.e., "[t]he circumstantial facts proved must exclude to a moral certainty every hypothesis but guilt" (1 CJI[NY] 9.05, at 475; see, People v Silva, 69 NY2d 858, 859; People v Ford, 66 NY2d 428, 442). The prosecution's case rested only upon direct evidence of the collateral facts that defendant and his cousin were in the truck from which the fatal shot was fired and that the barrel of the shotgun was sticking out of the window on the driver's side. There was no proof, however, that defendant fired the shotgun or even that he, rather than the passenger, was holding the shotgun. Thus, because the evidence of defendant's guilt was entirely circumstantial, the failure of the trial court to instruct the jury that it must apply the moral certainty standard of proof may not be deemed harmless. Harmless error analysis is inapplicable where the "jury could not have known of its duty to apply the circumstantial evidence standard to the prosecution's entire case" ( People v Sanchez, 61 NY2d 1022, 1023).
We have reviewed the remaining contention of defendant raised in his pro se supplemental brief and conclude that it is without merit. (Appeal from Judgment of Supreme Court, Monroe County, Bergin, J. — Murder, 2nd Degree.)