Opinion · New York Court of Appeals
People v. Gonzalez
54 N.Y.2d 729
- Type
- Opinion
- Court
- New York Court of Appeals
- Jurisdiction
- New York
- Date
- 1981-07-07
- Topic
- general
concurring opinion with three judges joining, citing Holland for proposition that adequate instruction on reasonable doubt dispenses with need for circumstantial evidence charge. | concurring opinion with three judges joining, citing Holland for proposition that adequate instruction on reasonable doubt dispenses with need for circumstantial evidence charge. | defendant failed to preserve for review argument that he had due process right to introduce exculpatory grand jury testimony of defense witness who died before trial by failing to make timely objection
Citator
- Cited by
- 28 opinions
OPINION OF THE COURT
Memorandum.
The order of the Appellate Division should be affirmed.
Defendant’s argument that the trial court erred in refusing to admit the Grand Jury testimony of a witness who was unavailable at the time of the trial must be rejected. The testimony was excludable as hearsay evidence, and not admissible within the statutory exceptions to that rule (see CPL 670.10; People v Harding, 87 NY2d 130). Defendant’s additional argument that he had a due' process right to introduce this testimony (see Chambers v Mississippi, 410 US 284) was not preserved for our review by timely objection.
With respect to the defendant’s contention as to the circumstantial evidence charge, it is noted that although the charge as given did not include the words “exclude to a moral certainty” as requested by the defendant it did nevertheless, in substance, adequately inform the jury as to the burden of proof in a circumstantial evidence case (see People v Morris, 36 NY2d 877).