Opinion
July 26, 1993
Appeal from the Supreme Court, Kings County (Lombardo, J.).
Ordered that the judgment is affirmed.
The trial court did not err in denying the defendant's motion to dismiss the indictment based on his failure to testify before the Grand Jury. CPL 190.50 (5) (c) provides that a motion to dismiss an indictment because a defendant was not allowed to testify before the Grand Jury must be made not more than five days after the defendant has been arraigned on the indictment. The issue is waived if the defendant fails to timely move. In this case, it is undisputed that the defendant filed his motion to dismiss six days after his arraignment on the indictment. Therefore, the defendant waived any claim arising under CPL 190.50 (see, People v. Puluso, 182 A.D.2d 783; People v Johnston, 178 A.D.2d 550; People v. Morales, 163 A.D.2d 332; People v. Rafajlovski, 152 A.D.2d 608; People v. Hunter, 131 A.D.2d 877).
The defendant was not deprived of a fair trial by the circumstances surrounding a witness's decision not to testify on his behalf. Although a defendant has the right to present witnesses in his defense (see, Washington v. Texas, 388 U.S. 14), and government conduct which substantially interferes with the free and unhampered decision of a potential defense witness to testify violates due process (see, People v. Shapiro, 50 N.Y.2d 747), not every contact between a government agent and a potential defense witness constitutes a "substantial interference" with the choice to testify (cf., People v. Booker, 145 A.D.2d 564; People v. Kuss, 122 A.D.2d 599; People v. McRoy, 121 A.D.2d 566). Due process is violated only when warnings by a government agent to a potential defense witness are "emphasized to the point where they are transformed instead into instruments of intimidation" (People v. Shapiro, supra, 50 N.Y.2d, at 762). In this case, the prosecutor's actions in arresting the witness at the courthouse did not represent an attempt to intimidate him into refusing to testify for the defendant. It is undisputed that the witness was the fourth man involved in the crime. When defense counsel announced that he wished to call him as a witness, he was told that he would be arrested as an accomplice if he returned to New York whether or not he testified on the defendant's behalf. Moreover, the arrest took place after the witness had announced that he would not testify for the defendant. There is no reason to believe that the witness did not testify because he was intimidated. Rather, his refusal to testify was perfectly reasonable, since he was facing criminal prosecution for his participation in the same incident about which he would have been testifying. Further, because any testimony which the witness might have given concerning the incident clearly could have tended to incriminate him, there was no need for the court to bring him into the courtroom to formally assert his Fifth Amendment privilege (see, People v. Bagby, 65 N.Y.2d 410; People v. Thomas, 51 N.Y.2d 466; People v. Arroyo, 46 N.Y.2d 928; Matter of Ryder v. Harris, 93 A.D.2d 971; State of New York v. Carey Resources, 97 A.D.2d 508; State of New York v Skibinski, 87 A.D.2d 974).
The defendant was not denied the effective assistance of counsel (see, People v. Baldi, 54 N.Y.2d 137). It is well settled that trial strategy should not be second-guessed on appeal (see, People v. Lane, 60 N.Y.2d 748). Moreover, the defendant has failed to establish that his attorney's performance was so unreasonable as to fall out of the scope of professional competence (see, People v. Lovacco, 147 A.D.2d 592).
Viewing the evidence in the light most favorable to the People (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. 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).
We have examined the defendant's remaining contentions and find them to be unpreserved for appellate review or without merit. Mangano, P.J., Thompson, Pizzuto and Joy, JJ., concur.