PEOPLE v. EMILIONE (2009)

Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Anthony EMILIONE, Defendant-Appellant.

Decided: March 19, 2009

TOM, J.P., SAXE, SWEENY, ACOSTA, FREEDMAN, JJ.

Richard M. Greenberg, Office of the Appellate Defender, New York (Rosemary Herbert of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Deborah L. Morse of counsel), for respondent.

Judgment, Supreme Court, New York County (Ronald A. Zweibel, J.), rendered March 22, 2007, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the seventh degree, and sentencing him to a term of 3 years' probation, unanimously affirmed.

The court properly denied defendant's suppression motion, and the jury's verdict was not against the weight of the evidence. In both instances, we find no basis for disturbing the respective factfinders' credibility determinations concerning the police account of the incident (see People v. Danielson, 9 N.Y.3d 342, 348-349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007]; People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380 [1977] ).

The court properly denied defendant's request for a missing witness charge since the record shows that the testimony of the uncalled witness, with respect to the crime of which defendant was convicted, would have been entirely cumulative to that of the other witnesses (see People v. Macana, 84 N.Y.2d 173, 180, 615 N.Y.S.2d 656, 639 N.E.2d 13 [1994] ).

Defendant's remaining claims do not warrant reversal.

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