PEOPLE v. GONZALEZ

Reset A A Font size: Print

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

The PEOPLE of the State of New York, Respondent, v. Edwardo GONZALEZ, also known as Edgar Morales, Defendant-Appellant.

Decided: March 24, 2005

TOM, J.P., MAZZARELLI, SAXE, ELLERIN, NARDELLI, JJ. Laura R. Johnson, The Legal Aid Society, New York (Robert Budner of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Heather Pearson of counsel), for respondent.

Judgment, Supreme Court, New York County (John Cataldo, J.), rendered September 10, 2002, convicting defendant, after a jury trial, of burglary in the first degree and robbery in the first and second degrees, and sentencing him to an aggregate term of 18 years, unanimously affirmed.

 The court properly denied defendant's challenge for cause to a prospective juror who initially expressed a favorable inclination toward police testimony, but then gave an unequivocal assurance of his impartiality and his ability to evaluate such testimony fairly.   Viewed in context, his use of the phrase “I think so,” was not disqualifying (see People v. Chambers, 97 N.Y.2d 417, 419, 740 N.Y.S.2d 291, 766 N.E.2d 953 [2002] ).

 The court properly denied defendant's request for missing witness charges as to several police officers who played peripheral roles in defendant's arrest.   Defendant's assertion that these officers could have provided material, non-cumulative testimony is highly speculative (see People v. Macana, 84 N.Y.2d 173, 180, 615 N.Y.S.2d 656, 639 N.E.2d 13 [1994] ).   We similarly reject defendant's challenge to the court's charge on recent, exclusive and unexplained possession of the fruits of a crime (see People v. Baskerville, 60 N.Y.2d 374, 382-383, 469 N.Y.S.2d 646, 457 N.E.2d 752 [1983] ), since that challenge is predicated on the same speculative theory as his missing witness argument.

Defendant's suppression arguments are unpreserved and unavailing.