PEOPLE v. NASARIO (1999)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Koch, J.), rendered March 4, 1996, convicting him of assault in the first degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing (George, J.), of that branch of the defendant's omnibus motion which was to suppress statements made by him to law enforcement officials.

ORDERED that the judgment is affirmed.

 Contrary to the defendant's contention, the hearing record demonstrates that the police entered the defendant's apartment and arrested him only after obtaining the permission of the defendant's mother, an individual who clearly possessed the authority to consent to their entry (see, People v. Adams, 53 N.Y.2d 1, 439 N.Y.S.2d 877, 422 N.E.2d 537, cert. denied 454 U.S. 854, 102 S.Ct. 301, 70 L.Ed.2d 148;  People v. Huff, 200 A.D.2d 761, 607 N.Y.S.2d 96;  People v. Venable, 192 A.D.2d 565, 596 N.Y.S.2d 727).   The ruse employed by the police in acquiring the mother's consent was not so fundamentally unfair as to constitute a denial of due process (see, People v. Tarsia, 50 N.Y.2d 1, 11, 427 N.Y.S.2d 944, 405 N.E.2d 188;  People v. Rosario, 186 A.D.2d 598, 588 N.Y.S.2d 393;  People v. Abrams, 95 A.D.2d 155, 157, 465 N.Y.S.2d 208).

 In addition, the court did not err in denying the defendant's request for a missing witness charge where the defendant failed to establish that the missing witness would have offered anything other than cumulative testimony if produced at trial or that the witness was under the control of the People (see, People v. Macana, 84 N.Y.2d 173, 177, 615 N.Y.S.2d 656, 639 N.E.2d 13;  People v. Gonzalez, 68 N.Y.2d 424, 509 N.Y.S.2d 796, 502 N.E.2d 583;  People v. Pierre, 149 A.D.2d 740, 540 N.Y.S.2d 524).   In fact, the record reveals that the missing witness, a friend of the complainant, was also a friend of the defendant who may have been equally available to the defense and the prosecution (see, People v. Rose, 126 A.D.2d 581, 510 N.Y.S.2d 701).

MEMORANDUM BY THE COURT.