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People v. Emilione

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


March 19, 2009

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
ANTHONY EMILIONE, DEFENDANT-APPELLANT.

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.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Tom, J.P., Saxe, Sweeny, Acosta, Freedman, JJ.

1889/06

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 NY3d 342, 348-349 [2007]; People v Prochilo, 41 NY2d 759, 761 [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 NY2d 173, 180 [1994]).

Defendant's remaining claims do not warrant reversal.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090319

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