Opinion
January 22, 1991
Appeal from the Supreme Court, New York County (Herbert Adlerberg, J.).
On July 30, 1988, defendant was arrested while in possession of a weapon after a civilian informant, Dominick Quiano, told police that defendant had robbed him at gunpoint. After his arrest, and after having received Miranda warnings, defendant spontaneously told a police officer that "everybody who knows me knows I carry a gun".
Defendant was not denied compulsory process because of the prosecutor's refusal to grant immunity to Quiano after he asserted his privilege against self-incrimination (People v Sapia, 41 N.Y.2d 160, cert denied 434 U.S. 823). A prosecutor is free to withhold immunity from a potential defense witness absent abuse, as for example, when "the prosecutor builds his case with immunized witnesses but denies the defendant a similar opportunity" (People v Adams, 53 N.Y.2d 241, 247), which was not the case here. Nor was defendant entitled to a missing witness charge with respect to Quiano, not only because defendant failed to make the requisite showing that the witness was available to and under control of the prosecution (see, People v Dillard, 96 A.D.2d 112), but also because a missing witness charge is not appropriate where the potential witness has asserted his privilege against self-incrimination (People v Rodriguez, 38 N.Y.2d 95).
It was not improper to question defendant about his postarrest silence when "such silence is patently inconsistent with the defense asserted, and there is a patent obligation to speak" (People v Rothschild, 35 N.Y.2d 355, 360). Here, it was appropriate for the prosecutor to demonstrate the inconsistency in the defense contention, that the gun had been taken from a robber, by questioning the police officer on redirect examination as to whether defendant had denied that the gun was his, or that the third party had a gun. In any event, the court sustained objections to the questions and gave a curative instruction. Thus, even if improper, defendant was not prejudiced.
Concur — Milonas, J.P., Ellerin, Ross, Kassal and Rubin, JJ.