PEOPLE v. GONZALES (2019)

Judgment, Supreme Court, Bronx County (Ethan Greenberg, J. at suppression hearing;  Miriam R. Best, J. at jury trial and sentencing), rendered October 6, 2017, convicting defendant of criminal possession of a weapon in the second degree, and sentencing him to a term of 3 1/212 years, unanimously affirmed.

The court properly denied defendant's suppression motion.  There is no basis for disturbing the court's credibility determinations, which are supported by the record (see People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380 [1977] ).  The hearing evidence established a lawful traffic stop.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ).  There is no basis for disturbing the jury's credibility determinations.  The evidence amply supported the conclusion that defendant possessed a loaded pistol that was in his car.

The court properly denied defendant's request for a missing witness charge (see generally People v. Gonzalez, 68 N.Y.2d 424, 427, 509 N.Y.S.2d 796, 502 N.E.2d 583 [1986] ).  The uncalled police witness would not have been able to provide any material testimony.  At most, the officer could have testified about a matter relating to the chain of custody for the pistol, which was never at issue at the trial.

The court providently exercised its discretion when it denied defendant's mistrial application based on the jury's stated inability to reach a verdict, and instead delivered an Allen charge.  To the extent defendant is challenging the content of the charge, that claim is unpreserved and we decline to review it in the interest of justice.  As an alternative holding, we find it to be without merit.