Opinion
Submitted January 7, 2000
February 29, 2000
Appeal by the defendant from a judgment of the County Court, Westchester County (West, J.), rendered November 14, 1997, convicting him of criminal possession of a controlled substance in the third degree, criminal possession of a controlled substance in the fifth degree, and criminally using drug paraphernalia in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, without a hearing (Cowhey, J.), of that branch of the defendant's omnibus motion which was to suppress physical evidence.
Michael G. Paul, New York, N.Y., for appellant.
Jeanine Pirro, District Attorney, White Plains, N.Y. (Kenneth A. Christie and Richard Longworth Hecht of counsel), for respondent.
THOMAS R. SULLIVAN, J.P., SONDRA MILLER, WILLIAM D. FRIEDMANN, ROBERT W. SCHMIDT, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
Viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620 ), we find that it was legally sufficient to establish the defendant' s guilt beyond a reasonable doubt (see, Penal Law § 220.16, 220.50 Penal; People v. Van Buren, 213 A.D.2d 504 ; People v. Downs, 195 A.D.2d 477 ; People v. Nelson, 189 A.D.2d 828 ). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15[5]).
Contrary to the defendant's contention, he was not entitled to a missing witness charge, since he failed to satisfy his burden of demonstrating that the missing witness possessed material information (see, People v. Gonzalez, 68 N.Y.2d 424 ).
The sentence was not excessive (see, People v. Suitte, 90 A.D.2d 80 ).
The defendant's remaining contentions are without merit (see,People v. Baldi, 54 N.Y.2d 137 ; People v. Smith, 21 N.Y.2d 698 ; People v. Christopher, 258 A.D.2d 662 ).