People v. Thomas ( 1991 )

Judgment, Supreme Court, New York County (Herbert Adlerberg, J.), rendered June 7, 1989, convicting defendant, after a jury trial, of criminal possession of a weapon in the third degree and sentencing him to an indeterminate term of imprisonment of from 3V% to 7 years, unanimously affirmed.

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 NY2d 160, cert denied 434 US 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 NY2d 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 AD2d 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 NY2d 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 NY2d 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.