| People v Fowler |
| 2009 NY Slip Op 02804 [61 AD3d 698] |
| April 7, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Marcel Fowler, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, JohnnetteTraill, and Kristina Sapaskis of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Cooperman, J.), rendered July 3, 2007, convicting him of criminal possession of a weapon inthe second degree and criminal possession of a weapon in the third degree, upon a jury verdict,and imposing sentence. The appeal brings up for review the denial, after a hearing (Aloise, J.), ofthat branch of the defendant's omnibus motion which was to suppress physical evidence.
Ordered that the judgment is affirmed.
The Supreme Court providently exercised its discretion in denying the defendant's request tocall a witness at the suppression hearing. The right to call witnesses at a criminal proceeding isnot absolute (see People v Chipp, 75 NY2d 327, 336-337 [1990]), and the defendant'srequest was not supported by a "bona fide factual predicate" (People v Witherspoon, 66NY2d 973, 974 [1985]) demonstrating that the witness might provide material, noncumulativeevidence (see People v Smith, 37AD3d 302, 303 [2007]; People v Bailey, 179 AD2d 662 [1992]; People vHucks, 175 AD2d 213, 214 [1991]).
The Supreme Court also providently exercised its discretion in precluding the defendantfrom calling a witness at trial to present evidence of the weather conditions on the night of theincident that led to his arrest, since the only purpose of such evidence at trial would have been toimpeach the credibility of the People's witnesses on a collateral matter (see People vAlvino, 71 NY2d 233, 247-248 [1987]; People v [*2]Olivares, 34 AD3d602 [2006]; People vAlexander, 16 AD3d 515, 515-516 [2005]).
The defendant failed to preserve for appellate review his contention that the People did notprove, by legally sufficient evidence, that he knowingly possessed a loaded firearm (seeCPL 470.05 [2]; People vHawkins, 11 NY3d 484 [2008]). In any event, viewing the evidence in the light mostfavorable to the prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we findthat the evidence was legally sufficient to establish the defendant's guilt of both criminalpossession of a weapon in the second and third degrees beyond a reasonable doubt. Moreover,upon our independent review pursuant to CPL 470.15 (5), we are satisfied that the verdict ofguilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]). Fisher, J.P., Dillon,Belen and Chambers, JJ., concur.