Opinion
June 6, 1994
Appeal from the Supreme Court, Kings County (Feldman, J.).
Ordered that the judgment is affirmed.
The defendant contends that it was error to allow the prosecutor to call at trial a Grand Jury witness who had indicated that he would refuse to testify at trial. While it was error to allow the witness to be called, we find the error to be harmless.
"Absent a conscious and flagrant attempt by the prosecutor to build a case out of the inferences" arising from the witness's refusal to testify, "or without some indication that the witness's refusal to testify adds critical weight to the People's case in a form not subject to cross-examination, reversal is not warranted" (People v. Jones, 138 A.D.2d 405, 406; People v Grassia, 195 A.D.2d 607). Since the defendant's uncle informed the prosecutor that he would testify up to the day before he was supposed to testify, it was not an improvident exercise of discretion for the court to permit the prosecutor to call the uncle in an attempt to change his mind (see, People v. Berg, 59 N.Y.2d 294, 299-300; People v. Walker, 192 A.D.2d 631). Additionally, the trial court's curative instructions to the jury, immediately after dismissing the defendant's uncle and during the general charge, was sufficient to dispel any unfavorable inference which the jury might have drawn (see, People v. Berg, supra; People v. Jones, supra). Finally, we also find that the uncle's refusal to testify did not add critical weight to the prosecution's case (People v. Jones, supra). Sullivan, J.P., Joy, Hart and Krausman, JJ., concur.