Opinion
March 16, 1990
Appeal from the Onondaga County Court, Mulroy, J.
Present — Dillon, P.J., Boomer, Green, Balio and Davis, JJ.
Judgment unanimously affirmed. Memorandum: The court properly decided the suppression motion. The court did not err in denying defendant's application for permission to hire an expert to give testimony concerning the reliability of eyewitness identification (see, People v Barnwell, 155 A.D.2d 886; People v Valentine, 53 A.D.2d 832). The record indicates that the court did not abuse its discretion in denying defense counsel's request for an adjournment of the trial. Also, it was proper for the court to give an adverse inference charge concerning defendant's persistent refusal to comply with the court order directing him to give a sample of his blood. Where, as here, defendant comes forward with evidence, his failure to produce available evidence within his control creates an adverse inference (People v Paylor, 70 N.Y.2d 146, 149; People v Wilson, 64 N.Y.2d 634, 635-636; People v Rodriguez, 38 N.Y.2d 95, 101). The adverse inference charge given by the court did not violate the constitutional protection against self-incrimination because the privilege protects an accused only from being compelled to testify against himself or to provide the State with evidence of a testimonial nature. The withdrawal of blood does not involve such compulsion (see, Schmerber v California, 384 U.S. 757, 761; People v Craft, 28 N.Y.2d 274, 276-277). We reject defendant's contention that there was insufficient evidence to support the conviction for robbery at the Mobil gas station. We find no merit to the remaining issues raised by defendant.