PEOPLE v. DODGE (2007)

 Defendant appeals from a judgment convicting him upon a jury verdict of two counts of burglary in the second degree (Penal Law § 140.25[2] ), and one count each of grand larceny in the second degree (§ 155.40[1] ) and grand larceny in the third degree (§ 155.35).   Contrary to the contention of defendant, County Court did not abuse its discretion in granting the People's request for a missing witness charge (see generally People v. Savinon, 100 N.Y.2d 192, 197, 761 N.Y.S.2d 144, 791 N.E.2d 401).   The significance of the missing witness did not become apparent until a defense witness testified, and the People requested the charge “as soon as practicable” (People v. Gonzalez, 68 N.Y.2d 424, 428, 509 N.Y.S.2d 796, 502 N.E.2d 583;  see People v. Badine, 301 A.D.2d 178, 181, 752 N.Y.S.2d 679).   Contrary to defendant's contentions, there was no basis for the court to conclude that the missing witness was “likely to invoke” his Fifth Amendment privilege against self-incrimination if called as a witness (People v. Macana, 84 N.Y.2d 173, 177, 615 N.Y.S.2d 656, 639 N.E.2d 13), and the fact that the missing witness might have been in federal custody did not conclusively establish his unavailability (see Savinon, 100 N.Y.2d at 198 n. 5, 761 N.Y.S.2d 144, 791 N.E.2d 401;  see also CPL 670.10[1] ).

On the record before us, there is no constitutional double jeopardy violation (see People v. Lennon, 80 A.D.2d 672, 672-673, 436 N.Y.S.2d 385;  see also People v. Abbamonte, 43 N.Y.2d 74, 81, 400 N.Y.S.2d 766, 371 N.E.2d 485), and defendant's contention concerning statutory double jeopardy is not preserved for our review (see People v. Biggs, 1 N.Y.3d 225, 231, 771 N.Y.S.2d 49, 803 N.E.2d 370;  People v. Dodson, 48 N.Y.2d 36, 38, 421 N.Y.S.2d 47, 396 N.E.2d 194;  People v. Michallow, 201 A.D.2d 915, 607 N.Y.S.2d 781, lv. denied 83 N.Y.2d 874, 613 N.Y.S.2d 134, 635 N.E.2d 303).   Similarly, defendant failed to preserve for our review his contention concerning the prosecutor's use of the term “professional thief” to describe defendant (see People v. Gates, 6 A.D.3d 1062, 1063, 775 N.Y.S.2d 621, lv. denied 3 N.Y.3d 659, 782 N.Y.S.2d 701, 816 N.E.2d 574).   We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).   Indeed, we note with respect to the contention concerning the use of the term “ professional thief” that defendant used that term when asked to provide his occupation to police officers during the booking process after his arrest.

 Finally, the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672), defendant's contentions concerning the alleged legal insufficiency of the evidence are not preserved for our review (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919), and we conclude that the alleged Rosario and Brady violations would constitute harmless error in light of the overwhelming evidence of defendant's guilt (see People v. Vilardi, 76 N.Y.2d 67, 77, 556 N.Y.S.2d 518, 555 N.E.2d 915;  People v. Robinson, 267 A.D.2d 981, 701 N.Y.S.2d 191, lv. denied 95 N.Y.2d 838, 713 N.Y.S.2d 145, 735 N.E.2d 425).   We thus conclude that the court properly denied defendant's motion to set aside the verdict pursuant to CPL 330.30 on those grounds.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: