People v. Owens

¶1dissent and vote to affirm in the following memorandum by Casey, J. Casey, J. (dissenting). We cannot agree with the majority that the refusal of the District Attorney to request the trial court to confer immunity upon a defense witness, whose testimony presumably would be favorable to the defense, should result in a reversal of this defendant’s conviction. The witness Blake was not called at trial but, rather, at a hearing held outside the jury’s presence pursuant to CPL 60.42 (subd 5). Defendant contends that were he permitted to testify, Blake would admit to having had sexual relations with the complainant on or about July 5, 1980, the date of defendant’s crime, which would show that the semen stains found on the complainant’s underpants came from someone other than defendant. We agree that if such testimony were given, it would be favorable to defendant. At the hearing, however, on the advice of his attorney, Blake invoked his Fifth Amendment privilege in order to avoid prosecution for sexual misconduct with the complainant (Penal Law, § 130.20). When this claim was made, the trial court did not determine whether such testimony would be allowed as an exception to the provisions of CPL 60.42 under subdivision 5 but, rather, refused to permit Blake to be called as a witness to avoid any undue inference *857that the jury might draw from his claim of privilege and his refusal to testify. The issue on this appeal is, therefore, limited to the effect of CPL 50.30. That statute makes the court a competent authority “to confer immunity in accordance with the provisions of section 50.20, but only when expressly requested by the district attorney to do so”. Contrary to defendant’s contention, the law does not obligate the District Attorney to give immunity to defense witnesses (People v Adams, 53 NY2d 241). The statute (CPL 50.30) grants the District Attorney the discretion to request a grant of immunity from the court and the refusal to make such a request is reversible error only where there has been an abuse of that discretion through the District Attorney’s bad faith or conduct which violates a defendant’s due process right to a fair trial (People v Adams, supra; People v Shapiro, 50 NY2d 747; People v Sapia, 41 NY2d 160, cert den 434 US 823). The instant case presents no example, or even a claim, of either prosecutorial abuse or misconduct. Accordingly, we find no merit in the contention of defendant and are to affirm, since the other errors urged by defendant are inconsequential. The judgment of conviction should, therefore, be affirmed.