| People v Dunkley |
| 2009 NY Slip Op 02659 [61 AD3d 428] |
| April 7, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Rashad Dunkley, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Christopher P. Marinelli of counsel),for respondent.
Judgment, Supreme Court, New York County (John Cataldo, J.), rendered July 13, 2005, asamended August 30, 2007, convicting defendant, after a jury trial, of criminal sale of a controlledsubstance in the third degree and criminal possession of a controlled substance in the seventhdegree, and sentencing him to an aggregate term of 1 to 3 years, unanimously affirmed.
The court properly denied defendant's challenge for cause, since the prospective juror'sresponses, viewed as a whole, did not cast doubt on his ability to reach a fair and impartialverdict (see People v Chambers, 97 NY2d 417 [2002]; People v Arnold, 96NY2d 358 [2001]). The panelist unequivocally agreed that, notwithstanding his positive feelingstoward the police, he would follow the court's instruction to evaluate police testimony like anyother testimony. During subsequent questioning by defense counsel, the panelist never retracted,qualified, or wavered from that assurance.
The court properly modified its original Sandoval ruling after defendant testified thathe was "not a seller." In context, this was a global denial of drug dealing not limited to the caseon trial, and it opened the door to questioning about his prior marijuana sale conviction (seePeople v Fardan, 82 NY2d 638, 646 [1993]). We have considered and rejected defendant'sremaining arguments on this issue.
The prosecutor's cross-examination of defendant regarding his failure to call his girlfriendand a close friend as witnesses did not shift the burden of proof (see People v Overlee,236 AD2d 133, 143 [1997], lv denied 91 NY2d 976 [1998]). Defendant referred to bothpersons [*2]in his account of his allegedly innocent presence inthe vicinity of the drug transaction, and they were in a position to provide material testimonysubstantiating portions of his account. Concur—Andrias, J.P., Friedman, McGuire andMoskowitz, JJ.