Opinion
May 26, 1987
Appeal from the County Court, Nassau County (Ain, J.).
Ordered that the judgment is affirmed.
Contrary to the defendant's present contention, the court did not abuse its discretion in promptly reopening the suppression hearing to take evidence on the issue of probable cause, as the record demonstrates that the defendant's omnibus motion did not seek suppression of his statements on the ground of an illegal arrest, and the prosecution was entitled to elicit testimony on this issue in response to defense counsel's hearing arguments concerning an alleged lack of probable cause (see generally, People v. Farkas, 116 A.D.2d 983).
Similarly unavailing is the defendant's claim that the complainant's trial testimony was incredible as a matter of law. While the challenged testimony contained some factual inconsistencies, these discrepancies were properly presented to the jury as the arbiter of the complainant's credibility, and we perceive no basis in the record for disturbing its resolution of this issue (see, e.g., People v. Russo, 118 A.D.2d 740, lv denied 67 N.Y.2d 1056; People v. Reyes, 118 A.D.2d 666, lv denied 67 N.Y.2d 1056; People v. Herriot, 110 A.D.2d 851).
We further find that the trial court properly denied the defendant's motion for a missing witness charge with respect to an eyewitness to the crime. The witness was not under the control of the prosecution, as the record establishes that she testified for the People before the Grand Jury under subpoena and that separate Grand Jury proceedings were subsequently commenced against her (see generally, People v. Gonzalez, 68 N.Y.2d 424). Moreover, the prosecution demonstrated that the witness could not be located at the time of trial despite the diligent efforts of the police and the District Attorney's office; hence, her unavailability was sufficiently established and a missing witness charge would have been inappropriate under such circumstances (see, People v. Gonzalez, supra; People v. McCullers, 119 A.D.2d 835, lv denied 68 N.Y.2d 758).
We have considered the defendant's remaining contentions and find them to be either unpreserved for appellate review (see, People v. Nuccie, 57 N.Y.2d 818; People v. Thomas, 50 N.Y.2d 467) or without merit. Thompson, J.P., Niehoff, Kunzeman and Harwood, JJ., concur.