Opinion
August 28, 1995
Appeal from the Supreme Court, Kings County (DeLury, J.).
Ordered that the judgment is affirmed.
During cross-examination, the complaining witness invoked the Fifth Amendment privilege against self-incrimination. The defendant asserts that, as a result, he was deprived of his Sixth Amendment right to confrontation and the witness's testimony should have been stricken and a mistrial declared. However, since no motion to strike the testimony was made at trial, that issue is unpreserved for appellate review (see, CPL 470.05; see also, People v. Kaufman, 156 A.D.2d 718). The defendant's motion for a mistrial on this ground was properly denied. The witness's invocation of the privilege concerned a crime for which he had been charged but not yet convicted. The crime did not pertain to the facts surrounding the crimes of which the defendant was charged. Therefore, these were collateral matters, and the refusal of the witness to testify with respect thereto was not a denial of the defendant's right to confront the witness (see, People v. Chin, 67 N.Y.2d 22; see also, People v. Rodriguez, 177 A.D.2d 664; People v. Kaufman, supra). Although the inquiry as to whether the witness had been offered a plea bargain in connection with the charges pending against him could establish interest or bias (see, People v. Chin, supra), the witness's refusal to answer that inquiry was harmless under the circumstances of this case. We note that the witness had testified previously on direct examination that no promises were made to him in exchange for his testimony in the defendant's case.
The court properly denied the defendant's request for a missing-witness charge with respect to an eyewitness to the crime. In a hearing on this issue, the People established that the witness was identified to the police as "Junior", that the police had no address or last name for the witness and that the police made reasonable efforts under the circumstances to locate him. The People therefore met their burden of establishing that the witness was unavailable (see, People v. Kitching, 78 N.Y.2d 532, 536-537; People v. Gonzalez, 68 N.Y.2d 424, 428; People v Thomas, 200 A.D.2d 419; People v. Morgan, 177 A.D.2d 655).
The remarks by the prosecutor in summation were fair comment on the evidence and constituted legitimate responses to the defense counsel's summation (see, People v. Galloway, 54 N.Y.2d 396; see also, People v. Ashwal, 39 N.Y.2d 105). Sullivan, J.P. O'Brien, Altman and Goldstein, JJ., concur.