Opinion
September 30, 1991
Appeal from the Supreme Court, Kings County (Heller, J.).
Ordered that the judgment is affirmed.
During the trial of this case, the prosecutor indicated to the court that the People's main witness had indicated to her that she would not testify against the defendant because she feared for the safety of her family. After the prosecutor moved for a hearing to determine if the defendant was responsible for the witness being intimidated (see, Matter of Holtzman v Hellenbrand, 92 A.D.2d 405), the court adjourned the case to the following day. The next afternoon the prosecutor informed the court outside the defendant's presence that the reluctance of the witness to testify was waning. However, the court decided to proceed with a hearing and directed defense counsel not to discuss with the defendant the increased likelihood that the witness would testify in this case. This gag order was in effect during an overnight recess.
The defendant claims that the court's instruction violated his right to the effective assistance of counsel. We disagree. Not every restriction upon a defendant's access to his attorney constitutes reversible error per se. The ruling in issue here was of very limited scope. The court did not prohibit all conversations between the defendant and his attorney, but only discussion relating to the likelihood that the witness in question would testify (see, People v. Narayan, 88 A.D.2d 622; cf., Geders v. United States, 425 U.S. 80). Under the circumstances present here there was no error of law requiring reversal (see, Perry v. Leeke, 488 U.S. 272; cf., People v Blount, 159 A.D.2d 579, affd 77 N.Y.2d 888).
The defendant's assertion that the police officer's testimony regarding the statement made by the witness in question at the hospital following the incident which inculpated the defendant constituted impermissible bolstering by the People has not been preserved for appellate review as a matter of law (see, CPL 470.05; People v. Love, 57 N.Y.2d 1023). In any event, in view of the strength of the People's case, the alleged error must be deemed harmless (see, People v. Crimmins, 36 N.Y.2d 230, 242).
We have considered the defendant's remaining contentions, including those raised in his supplemental pro se brief, and find them to be without merit. Thompson, J.P., Bracken, Rosenblatt and O'Brien, JJ., concur.