Opinion
December 12, 1989
Appeal from the Supreme Court, Bronx County, George Covington, J.
Defendant's motion for disclosure of the Grand Jury minutes of defendant's potential alibi witnesses was properly denied. As to defendant's argument that the minutes were exculpatory under Brady v Maryland ( 373 U.S. 83), there can be no withholding or suppression of exculpatory evidence where, as here, the defendant knows the witnesses and is aware of the nature of their testimony. (See, People v Washington, 84 Misc.2d 935, 937 [Sup Ct, Kings County 1976]; United States v Natale, 526 F.2d 1160, 1170-1171 [2d Cir 1975].) Nor can the Grand Jury testimony of alibi witnesses be considered exculpatory under the reciprocal discovery requirement of Wardius v Oregon ( 412 U.S. 470), on the mere possibility that such testimony might be used to discredit the alibi evidence at trial. Further, under the circumstances of this case, there is no merit to the contention that defense counsel needed the Grand Jury minutes adequately to prepare a defense.
With respect to the claimed errors in the charge, even though the court failed to limit its instruction to the statutory language of CPL 300.10 (2), the charge as a whole conveyed to the jury that no adverse inference may be drawn from the fact that the defendant did not testify. Reversal, therefore, is not required. (See, People v Lara, 148 A.D.2d 340 [1st Dept 1989], lv granted 73 N.Y.2d 1017.) While the interested witness charge did not specify the potential interest of the complainant, there was nothing in the charge which suggested that the defense witnesses (who were not referred to by name) were interested or that they were the only witnesses that the jury could find interested. (See, People v Agosto, 73 N.Y.2d 963, 967.) Nor do we find merit to defendant's contention that the court erred in admitting statements that the complainant made to the police after the incident.
Concur — Kupferman, J.P., Sullivan, Carro, Rosenberger and Ellerin, JJ.