People v. Falciglia

153 A.D.2d 795, 545 N.Y.S.2d 149, 1989 N.Y. App. Div. LEXIS 11233

Opinions

Judgment of the Supreme Court, Bronx County (Bernard Fried, J.), rendered on April 22, 1988, convicting defendant, following a jury trial, of criminal possession of a weapon in the third degree and sentencing him, as a second violent felony offender, to an indeterminate term of imprisonment of from 2 Vi to 5 years, is affirmed.

Following a combined Mapp-Huntley hearing held in connection with defendant’s motion to suppress, the trial court denied the request for suppression of the weapon but granted the motion to suppress his statement. In that regard, the fact finding of the court, which had the opportunity to observe the demeanor of the witnesses and hear their testimony, should be accorded great weight (see, People v Prochilo, 41 NY2d 759). Under the circumstances herein, there is simply no basis to substitute this court’s determination of the facts for that of the trial court, as set forth in its well-reasoned opinion. We also disagree with the assertion that defendant was entitled to a missing witness charge since, contrary to the conclusion of the dissent, there is no indication that the individual in question was either available to the prosecution or under its control (People v Gonzalez, 68 NY2d 424). Concur—Kupferman, J. P., Sullivan, Milonas and Smith, JJ.