Opinion
November 2, 1998
Appeal from the County Court, Westchester County (Murphy, J.).
Ordered that the judgment is affirmed.
Viewing the evidence in the light most favorable to the prosecution ( 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).
Additionally, a witness can invoke his privilege against self-incrimination when the failure to do so would subject him to a real possibility of criminal prosecution ( see, United States v. Miranti, 253 F.2d 135; People v. Ciraulo, 40 A.D.2d 834). Further, the witness is generally the best judge of whether an answer may tend to be incriminating, though the witness may be required to establish a factual predicate where the danger of incrimination is not readily apparent ( see, People v. Arroyo, 46 N.Y.2d 928; State of New York v. Carey Resources, 97 A.D.2d 508). Here, the trial court correctly allowed a potential defense witness to invoke his Fifth Amendment right to refuse to testify, as the danger of incrimination was readily apparent.
The defendant's sentence was not excessive ( see, People v. Suitte, 90 A.D.2d 80).
The defendant's remaining contentions are either unpreserved for appellate review or without merit.
Ritter, J. P., Thompson, Pizzuto and McGinity, JJ., concur.