Opinion
KA 01-02205
June 13, 2003.
Appeal from a judgment of Ontario County Court (Doran, J.), entered October 9, 2001, convicting defendant after a jury trial of, inter alia, criminal sale of a controlled substance in the third degree (four counts).
DAVID M. PARKS, ITHACA, FOR DEFENDANT-APPELLANT.
JASON CATO, DEFENDANT-APPELLANT PRO SE.
R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (JAMES B. RITTS OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., GREEN, WISNER, BURNS, AND GORSKI, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Defendant appeals from a judgment entered upon a jury verdict convicting him of crimes arising from his sale of cocaine on four separate occasions. Contrary to the contention of defendant, County Court properly denied his challenge for cause to prospective jurors Nos. 6 and 7. The totality of their responses establishes that both jurors gave unequivocal assurances of impartiality ( see People v Chambers, 97 N.Y.2d 417, 419; People v. Parker, ___ A.D.2d ___ [Feb. 7, 2003]).
Defendant also contends that the court erred in failing to give a missing witness charge. Even assuming, arguendo, that the court erred in failing to give the charge, we conclude that the error is harmless inasmuch as "[t]he proof of guilt is overwhelming, and there is no significant probability that defendant would have been acquitted but for the error" ( People v. Martinez, 294 A.D.2d 933, 935, lv denied 98 N.Y.2d 678; see People v. Guarino, 298 A.D.2d 937, 938, lv denied 98 N.Y.2d 768; People v. Williams, 286 A.D.2d 918, 919, lv denied 97 N.Y.2d 763).
Contrary to the further contention of defendant, the court properly precluded his wife from testifying concerning "collateral matters intended merely to impeach the * * * credibility [of a prosecution witness]" ( People v. Chesson, 303 A.D.2d 418 [Mar. 3, 2003]). Defendant's additional contention that the testimony was admissible on the issue of bias is not preserved for our review ( see id.), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( see CPL 470.15 [a]).
Defendant also contends that he is entitled to a new trial because he was not permitted to ask a prosecution witness on cross-examination whether she was still a police informant at the time of trial. We disagree. While proof of bias is not collateral, a court may limit such cross-examination in the exercise of discretion ( see People v. Cullen, 236 A.D.2d 808, lv denied 89 N.Y.2d 1010). We perceive no abuse of discretion where, as here, defendant had a full opportunity to cross-examine the witness on her status as a police informant at the time she witnessed one of the alleged drug sales ( see People v. Riggins, 298 A.D.2d 192, lv denied 99 N.Y.2d 563; see also People v. Messa, 299 A.D.2d 495, 496). Even assuming, arguendo, that the court's ruling was an abuse of discretion, we conclude that the error is harmless ( see People v Lewis, 168 A.D.2d 637, lv denied 77 N.Y.2d 997).
We have reviewed defendant's remaining contentions and conclude that they are without merit.