PEOPLE v. COLEMAN (2003)

 Defendant appeals from a judgment convicting him after a jury trial of attempted murder in the second degree (Penal Law §§ 110.00, 125.25 [1] ), criminal use of a firearm in the first degree (§ 265.09), and criminal possession of a weapon in the second degree (§ 265.03 [2] ), all arising out of a shooting.   We conclude that Supreme Court properly denied the motion of defendant to suppress his statements to police.   Great weight must be accorded to the determination of the suppression court because of its ability to observe and assess the credibility of the witnesses, and its findings should not be disturbed unless clearly erroneous or unsupported by the hearing evidence (see People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380;  People v. Moore, 295 A.D.2d 969, 743 N.Y.S.2d 922, lv. denied 98 N.Y.2d 770, 752 N.Y.S.2d 11, 781 N.E.2d 923;  People v. May, 263 A.D.2d 215, 219, 702 N.Y.S.2d 393, lv. denied 94 N.Y.2d 950, 710 N.Y.S.2d 7, 731 N.E.2d 624).   Here, the testimony of the interrogating officers, whom the court credited, established that defendant knowingly, intelligently, and voluntarily waived his Miranda rights and agreed to speak without an attorney.   Further, the officers' testimony established that defendant's confession was not coerced (see People v. Mitchell, 289 A.D.2d 776, 778-779, 734 N.Y.S.2d 353, lv. denied 98 N.Y.2d 653, 745 N.Y.S.2d 512, 772 N.E.2d 615;  People v. Whorley, 286 A.D.2d 858, 730 N.Y.S.2d 595, lv. denied 97 N.Y.2d 689, 738 N.Y.S.2d 305, 764 N.E.2d 409;  cf.  People v. Anderson, 42 N.Y.2d 35, 38-41, 396 N.Y.S.2d 625, 364 N.E.2d 1318).   Defendant's testimony to the contrary merely raised an issue of credibility that the court was entitled to resolve in favor of the People (see People v. Acosta, 241 A.D.2d 385, 386, 661 N.Y.S.2d 3, lv. denied 92 N.Y.2d 846, 677 N.Y.S.2d 77, 699 N.E.2d 437).

 The court properly denied defendant's request to admit the grand jury testimony of the victim, who did not testify at trial.   Defendant failed to make the requisite showing that the victim's grand jury testimony bore sufficient indicia of reliability (cf.  People v. Robinson, 89 N.Y.2d 648, 655-656, 657 N.Y.S.2d 575, 679 N.E.2d 1055).   In particular, there was no demonstration that the victim was subjected to vigorous examination before the grand jury or that his account was otherwise tested for credibility (cf. id. at 656-657, 657 N.Y.S.2d 575, 679 N.E.2d 1055;  see generally People v. Rosa, 302 A.D.2d 231, 754 N.Y.S.2d 279;  People v. Richardson, 297 A.D.2d 611, 612, 747 N.Y.S.2d 364, lv. granted 99 N.Y.2d 563, 754 N.Y.S.2d 216, 784 N.E.2d 89).   In any event, any error in the court's refusal to admit the grand jury testimony is harmless beyond a reasonable doubt (see People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787).   Defendant was permitted to present the testimony of investigating officers to whom the victim had given his initial statements exculpating defendant.   That testimony placed before the jury the same facts that would have been conveyed by the victim's grand jury testimony, thus rendering the grand jury testimony cumulative of other evidence.

 The People demonstrated a sufficient connection between defendant, the shooting, and the gun to warrant the admission of the gun in evidence (see People v. McClean, 122 A.D.2d 379, 381-382, 504 N.Y.S.2d 796, affd. 69 N.Y.2d 426, 515 N.Y.S.2d 428, 508 N.E.2d 140;  People v. Miller, 116 A.D.2d 596, 498 N.Y.S.2d 313, lv. denied 67 N.Y.2d 947, 502 N.Y.S.2d 1040, 494 N.E.2d 125).   The gun admitted in evidence was consistent with the witnesses' descriptions of that used by the shooter, and the number of spent shells recovered with it matched the number of shots fired in the assault.   More important, the gun was located by police through the efforts of intermediaries enlisted by defendant.

 The court did not err in denying defendant's request for a missing witness charge with respect to the victim and another witness.   Defendant's request was untimely (see generally People v. Gonzalez, 68 N.Y.2d 424, 427-428, 509 N.Y.S.2d 796, 502 N.E.2d 583;  see People v. McKinney, 302 A.D.2d 993, 755 N.Y.S.2d 541;  People v. Hayes, 261 A.D.2d 872, 873, 690 N.Y.S.2d 358, lv. denied 93 N.Y.2d 1019, 697 N.Y.S.2d 578, 719 N.E.2d 939, 93 N.Y.2d 1021, 697 N.Y.S.2d 580, 719 N.E.2d 941).   In any event, the record demonstrates that the victim was neither available to the People (see People v. Legrand, 275 A.D.2d 932, 715 N.Y.S.2d 180, lv. denied 95 N.Y.2d 906, 716 N.Y.S.2d 647, 739 N.E.2d 1152;  People v. Vigliotti, 270 A.D.2d 904, 905, 706 N.Y.S.2d 544, lv. denied 95 N.Y.2d 839, 713 N.Y.S.2d 146, 735 N.E.2d 426), nor under their control (see id.;   see also People v. Johnson, 289 A.D.2d 1024, 735 N.Y.S.2d 451, lv. denied 98 N.Y.2d 638, 744 N.Y.S.2d 767, 771 N.E.2d 840;  People v. Lovall, 286 A.D.2d 863, 864, 730 N.Y.S.2d 472, lv. denied 97 N.Y.2d 684, 738 N.Y.S.2d 300, 764 N.E.2d 404).   Similarly, the record demonstrates that the other potential witness was not under the control of the People (see Johnson, 289 A.D.2d at 1024, 735 N.Y.S.2d 451;  Lovall, 286 A.D.2d at 864, 730 N.Y.S.2d 472).   In any event, the evidence of defendant's guilt is overwhelming, and there is no significant probability that defendant otherwise would have been acquitted.   Thus, any error by the court in failing to give a missing witness instruction is harmless (see People v. Guarino, 298 A.D.2d 937, 938, 748 N.Y.S.2d 99, lv. denied 98 N.Y.2d 768, 752 N.Y.S.2d 8, 781 N.E.2d 920;  People v. Williams, 286 A.D.2d 918, 919, 730 N.Y.S.2d 631, lv. denied 97 N.Y.2d 763, 742 N.Y.S.2d 624, 769 N.E.2d 370).

We have considered the contentions raised in defendant's pro se supplemental brief and conclude that they are without merit.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: