Opinion
October 21, 1991
Appeal from the Supreme Court, Kings County (Pincus, J.).
Ordered that the judgment is affirmed.
We find that the defendant's contention that Police Officer Louis Ayala's assertion of his Fifth Amendment privilege was unjustified was not preserved for appellate review because the defendant did not make this argument at trial (see, CPL 470.05; People v. Udzinski, 146 A.D.2d 245, 248-252). In any event, Officer Ayala had "`a reasonable cause to apprehend danger'" (Flushing Natl. Bank v. Transamerica Ins. Co., 135 A.D.2d 486, 487) that his answer to the defense attorney's questions could tend to incriminate him, and therefore, the court properly refused to compel him to testify (see, People ex rel. Taylor v Forbes, 143 N.Y. 219, 231). Also, it was not an improvident exercise of discretion for the court to refuse to compel Officer Ayala to take the witness stand before the jury to assert the privilege. Such an action would have led to speculation among the jurors (see, People v. Thomas, 51 N.Y.2d 466, 472).
We further find that the defendant's absence when the court turned over three previously admitted exhibits to the jury was not a violation of his right to be present during a critical stage of the trial (see, People v. Harris, 76 N.Y.2d 810, 812; People v. Jacobs, 162 A.D.2d 716, 717). Also, the court's failure to accord the defendant an opportunity to be heard on whether the exhibits should be turned over to the jury (see, CPL 310.20) was harmless in light of the overwhelming evidence of his guilt (see, People v. Crimmins, 36 N.Y.2d 230, 241-242).
We have considered the defendant's remaining contentions and find them to be without merit. Sullivan, J.P., Lawrence, O'Brien and Ritter, JJ., concur.