Opinion
February 13, 1996
Appeal from the Supreme Court, Bronx County (William Wallace, III, J.).
Defendant's right to confront witnesses was not violated by the prosecutor's opening statement or by the admission into evidence of a portion of the codefendant's plea allocution. In his initial statement to the jury that the evidence would show that defendant acted in concert to rob complainant, the prosecutor did not refer to any particular testimony of a witness who ultimately invoked the Fifth Amendment privilege. To the extent that the prosecutor may have implied that the already convicted codefendant would testify, the record does not support a finding of bad faith or undue prejudice ( see, People v. De Tore, 34 N.Y.2d 199, 207, cert denied sub nom. Wedra v. New York, 419 U.S. 1025), as there was a reasonable basis for the prosecutor to believe that the somewhat cooperative codefendant might ultimately agree to testify. Nor did the prosecutor's remarks prejudicially bolster the People's case.
The admission of a portion of the codefendant's plea allocution was proper as the record clearly shows that the codefendant was unavailable after she invoked her Fifth Amendment rights, that she was aware when allocuted that her statement was against her penal interest, that she had competent knowledge of the underlying facts and that there were independent indicia of her statement's reliability ( see, People v. Thomas, 68 N.Y.2d 194, 197, cert denied 480 U.S. 948).
The trial court properly denied defendant's motion to dismiss the indictment on speedy trial grounds. Contrary to defendant's contention, the record does not support a finding of bad faith on the People's part regarding their readiness pronounced on September 13, 1990 and October 11, 1990. Further, the trial court properly concluded that from November 29, 1990 to April 22, 1991, the complainant's absence from this country constituted an exceptional circumstance, the People having shown that they were diligent in attempting to secure his presence ( see, People v Pomales, 159 A.D.2d 451, lv denied 76 N.Y.2d 847).
Concur — Murphy, P.J., Sullivan, Rubin, Ross and Tom, JJ.