dissents in a memorandum as follows: the judgment of conviction of murder in the second degree should be reversed on the law and a new trial ordered because of the absence of a charge on circumstantial evidence.
CPL 470.15 (4) (b) deems allegations as to the insufficiency of the evidence to be reviewable by this court "upon the law” even in the absence of a specific objection at the trial court. (See, People v Kilpatrick, 143 AD2d 1, 3 [1st Dept 1988].) Thus, the defendant’s contention that the circumstantial evidence was insufficient to support his conviction of robbery in the first degree and murder in the second degree is reviewable by this court upon the law. (CPL 470.15.)
Viewed in the light most favorable to the People (People v Montanez, 41 NY2d 53, 57 [1976]), the trial evidence disclosed that Beverly Eason and the defendant had devised a scheme to rob the deceased, Larry Granum, a drug dealer who along with his brother sold crack out of a social club on Boston Post Road in Bronx County. Eason, an admitted drug addict who also sold drugs for the Granums, was angry because the brothers owed her $1,000 in drug sale commissions which they refused to pay. The defendant agreed to rob Larry and to equally divide the proceeds of the robbery with Eason.
Eason testified that on February 26, 1986 at about 11:30 p.m., she and the defendant went to the social club where, as arranged, the defendant waited outside while Eason entered the club in order to determine whether Larry was alone. Eason saw Larry in the club and observed money and vials of crack lying atop a bar. She noticed that Larry was not wearing a gun as he sometimes did. She looked around and saw that no one else was in the club. Eason remained in the club for about 10 minutes speaking with the deceased and purchasing crack from him. She wrote her cousin’s telephone number on a piece of paper and left it with the deceased. Upon exiting the club, Eason nodded to the defendant, thereby signaling that Larry was alone. The defendant at that time was standing near another man but she did not know whether they were together. Eason returned to her apartment one block away. Less than 40 minutes later she heard police sirens and thereafter learned from the victim’s brother about the murder. The following morning she went to the defendant’s *511apartment and asked him why he had killed Larry Granum. According to Eason the defendant laughed, denied the murder, stated that "the next guy” did it, but refused to say who this other person was. The defendant admitted that he had robbed Larry Granum of money and crack and stated that no one had seen him. He threatened to shoot Eason’s family if she revealed anything. Eason did not want nor did she receive a share of the proceeds.
Prior to trial Eason pleaded guilty to robbery, first degree, as an accomplice to the defendant. At the time of her testimony, she was awaiting sentencing upon the prosecutor’s promise that the sentencing court would be advised of her cooperation.
A second prosecution witness, Ertha Lee, lived one block from the club and was acquainted with the parties. While walking home at about 11:15 p.m., she noticed that the defendant was standing in the immediate area of the club and that he was wearing a plaid lumber jacket. Minutes later from her apartment window, she observed the defendant enter the club by himself. He quickly exited a few minutes later, by himself and with nothing in his hands. She could not recall whether he was wearing the plaid jacket. He left open the door to the club which was usually kept closed. A few minutes later she observed the victim’s brother enter and quickly exit the club, calling to someone. The police arrived shortly thereafter.
The police officers, who were hailed by the victim’s brother, arrived at the scene to find Larry Granum lying on the floor with stab wounds in his chest, with his pockets turned inside out and with the piece of paper containing the telephone number of Eason’s cousin on his chest. A scale, heating pot and crack vials, but no drugs or money, were found in the club. A plaid jacket also was found in the club. No weapon was discovered.
It cannot be said based upon the evidence, when viewed in the light most favorable to the People, that the conclusion of the defendant’s guilt was inconsistent with and did not flow naturally from the facts proven, or that those facts when viewed as a whole did not exclude " 'to a moral certainty’ ” every conclusion other than guilt. (People v Kennedy, 47 NY2d 196, 202 [1979].) Those facts include: Eason’s testimony concerning the scheme to rob the deceased; the defendant’s admission as to the robbery and other statements to Eason; the discovery of the deceased within a few minutes after the defendant left the club; the discovery of the defendant’s *512jacket; and testimony that no one other than the victim was seen in the club at the time that the defendant entered.
While proof of the defendant’s guilt may have been legally sufficient to sustain both the robbery and murder convictions, the evidence against him was far from overwhelming. No one saw the actual stabbing. The defendant was standing next to an unidentified person when Eason left the bar prior to the murder. Although defendant laughed when Eason asked him why he killed the deceased, he did deny the murder.
CPL 300.10 (2) mandates that the Trial Judge instruct the jury as to the "material legal principles applicable to the particular case”.
Here, the People’s case rests entirely upon circumstantial evidence. The lack of a circumstantial evidence charge, even in the absence of a request by the defendant, was so prejudicial an error as to require reversal and a new trial. (CPL 470.15 [6]; People v Tsotselashvili, 135 AD2d 759, 761 [2d Dept 1987] [robbery conviction reversed and a new trial ordered even though no request for a circumstantial evidence charge made]; see also, the following cases involving the refusal to give or an erroneous circumstantial evidence charge: People v Sanchez, 61 NY2d 1022 [1984]; People v Rodriquez, 134 AD2d 153 [1st Dept 1987]; People v McLean, 123 AD2d 888 [2d Dept 1986].)