People v. Howard — 151 A.D.2d 990

Majority

p. 990

The People of the State of New York, Respondent, v David Howard, Appellant.

Judgment unanimously affirmed. Memorandum: The prosecution’s refusal to immunize potential defense witness Mack Lumpkin did not deprive defendant of his right to compulsory and due process, and the court’s decision to excuse the witness and deny the motion for dis

p. 991

missal of the charges was proper. "It is well established that a defendant has no constitutional right to require the conferral of immunity on a defense witness who refuses to testify” (People v Vicaretti, 54 AD2d 236 , 246). Here, the People’s case was supported by substantial proof connecting defendant to the crime and was not built upon the testimony of immunized witnesses (see, People v Adams, 53 NY2d 241 , 247). Moreover, any testimony which Lumpkin might have offered was not exculpatory and would have been merely cumulative.

Defendant’s pre-Miranda statements resulted from about five minutes of questioning. No threats or promises were made and his freedom was never restricted by the questioning officers. Thus, the court’s conclusion that defendant was not in custody and his statements to the police were voluntary is supported by the record.

We have reviewed defendant’s remaining arguments and find them without merit. (Appeal from judgment of Erie County Court, McCarthy, J. — manslaughter, second degree, and other charges.) Present — Callahan, J. P., Doerr, Boomer, Lawton and Davis, JJ.

Cases cited

People v. Vicaretti 54 AD2d 236 N.Y. App. Div. 1976-11-05 at 246 p. 991
People v. Adams 53 NY2d 241 N.Y. 1981-06-16 at 247 p. 991