People v. Jakins

277 A.D.2d 328, 716 N.Y.S.2d 70, 2000 N.Y. App. Div. LEXIS 11943

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 13, 2000
• Status: Published

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Mason, J.), rendered March 5, 1998, convicting him of assault in the first degree and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of those branches of the defendant’s omnibus motion which were to suppress identification testimony and statements made by him to law enforcement officials.

Ordered that the judgment is affirmed.

The factual findings and credibility determinations of a hearing court are entitled to great deference on appeal, and will not be disturbed unless clearly unsupported by the record (see, People v Prochilo, 41 NY2d 759, 761; People v Rose, 204 AD2d 745, 746). The hearing minutes support the denial of those branches of the defendant’s omnibus motion which were to suppress identification testimony and statements made by him to law enforcement officials (see, People v Gordon, 242 AD2d 640).

The trial court properly gave a missing witness charge with respect to the defendant’s father on the ground that he could have provided noncumulative testimony on the material issue of whether there was justification for the defendant’s assault on a Consolidated Edison meter reader (see, People v Macana, 84 NY2d 173; People v Horn, 217 AD2d 406). The defendant failed to demonstrate that his father, who could have been expected to testify favorably to him, was unavailable to testify (see, People v Mulero, 229 AD2d 402).

The defendant’s remaining contentions are unpreserved for appellate review and, in any event, without merit. Ritter, J. P., Santucci, Krausman and Smith, JJ., concur.