People v. Arroyo , 46 N.Y.2d 928 ( 1979 )

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The trial court did not err in upholding the refusal of the witness called by the defense to testify based on the assertion of his constitutional privilege against self incrimination. There is nothing in this record to take this case out of the general rule that the witness is the judge of his right to invoke the privilege (People ex rel. Taylor v Forbes, 143 NY 219, 230-231; see, also, 65 NY Jur, Witnesses, § 43, p 196).

Nor did the refusal of the prosecutor to grant the witness immunity deny defendant due process or deprive him of his right to a fair trial. It suffices for present purposes to note that the witness here was not an agent of the law enforcement authorities or otherwise in any way a part of the prosecutorial apparatus. (Cf. People v Sapia, 41 NY2d 160).

Finally, we agree that no error was committed by the trial court when it refused to receive the pretrial hearsay statement made by the witness to the District Attorney’s office.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur.

Order affirmed in a memorandum.