PEOPLE v. JAKINS (2000)

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 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380;  People v. Rose, 204 A.D.2d 745, 746, 614 N.Y.S.2d 258).   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 A.D.2d 640, 664 N.Y.S.2d 750).

 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 N.Y.2d 173, 615 N.Y.S.2d 656, 639 N.E.2d 13;  People v. Horn, 217 A.D.2d 406, 629 N.Y.S.2d 453).   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 A.D.2d 402, 644 N.Y.S.2d 650).

The defendant's remaining contentions are unpreserved for appellate review and, in any event, without merit.

MEMORANDUM BY THE COURT.