Summary
In People v. Cruz (181 A.D.2d 906), this Court vacated the defendant's sentence and remitted the matter to the Supreme Court, Kings County, based on the court's failure to conduct a hearing pursuant to CPL 400.15 (5). Upon remittitur, the defendant elected to appear pro se at both the hearing and his subsequent resentencing.
Summary of this case from People v. CruzOpinion
March 30, 1992
Appeal from the Supreme Court, Kings County (Quinones, J.).
Ordered that the judgment is modified, on the law, by vacating the sentence imposed; as so modified, the judgment is affirmed, and the case is remitted to the Supreme Court, Kings County, for a hearing and determination pursuant to CPL 400.15 (5) and for resentencing.
We reject the defendant's contention that he was prejudiced by the victim's initial reluctance to testify and subsequent assertion of his Fifth Amendment privilege against self-incrimination. There is nothing in the record to indicate that the victim's refusal to testify was deliberately demonstrated to the jury for the purpose of having it draw unwarranted inferences, inter alia, that the victim had been intimidated by the defendant. Nor did the victim's refusal to testify add "critical weight" to the prosecution's case (see, Namet v United States, 373 U.S. 179; People v Berg, 59 N.Y.2d 294). Moreover, the People's consent to grant the victim immunity demonstrated their good faith in calling the witness (see, People v Torres, 141 A.D.2d 682).
We also reject the defendant's contention that he was entitled to a missing witness charge with respect to a police officer who assisted in apprehending the defendant. The defendant failed to make any showing that the witness would provide testimony on a material issue (see, People v Kitching, 78 N.Y.2d 532; People v Erts, 73 N.Y.2d 872; People v Dianda, 70 N.Y.2d 894; People v Gonzalez, 68 N.Y.2d 424).
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).
However, at sentencing, the defendant challenged the validity of his prior felony conviction on the ground that a plea agreement had been violated, or alternatively, on the ground of ineffective assistance of counsel. As the People concede, the court erred in failing to conduct a hearing pursuant to CPL 400.15 (5). Accordingly, the matter must be remitted to the Supreme Court, Kings County, for a hearing and resentencing (see, People v Humphries, 144 A.D.2d 385; People v Ordine, 130 A.D.2d 518).
We have considered the defendant's remaining contentions, including those raised in his supplemental pro se brief, and find them to be without merit. Mangano, P.J., Thompson, Bracken and Pizzuto, JJ., concur.