Opinion
October 6, 1992
Appeal from the Supreme Court, New York County (Donald J. Mark, J.).
Defendant and the codefendant David Ward were arrested for selling crack cocaine to an undercover officer during the course of a buy and bust operation which was executed in the area of Bond Street and the Bowery. During cross examination, the undercover officer refused to reveal the exact location of the police van on the day in question upon the ground that it would jeopardize the safety of the officers with respect to ongoing undercover operations in that area. The trial court held an in camera discussion with the witness outside the presence of the defendant and his counsel, to determine whether the information should be withheld, and on appeal, the defendant claims that he was denied his constitutional right to cross examination by the trial court's refusal to compel the undercover officer to reveal the exact location of the van. However, a defendant's right to cross examination is not without bounds, and the question is whether the witness' refusal to answer the cross examiner's questions so distorts the fact finding process that the defendant has been deprived of a fair trial (People v Chin, 67 N.Y.2d 22, 28). In this case, we need not decide whether the testimony sought should be categorized as either direct or collateral (compare, People v Allen, 50 N.Y.2d 898, affg 67 A.D.2d 558, with People v Schneider, 36 N.Y.2d 708, revg on dissent at 44 A.D.2d 845) finding, as we do, that the defendant was able sufficiently to probe the intended area of inquiry (see, People v Chin, supra; People v Allen, supra). We also reject defendant's claim that he was denied his right to be present at a material phase of the trial, as there is no showing that the in camera conference had any substantial effect upon the defendant's ability to defend in this case (see, People v Mullen, 44 N.Y.2d 1, 5; People v Guzman, 176 A.D.2d 561, 563, lv denied 79 N.Y.2d 920).
We find the prosecutor's comments, objected to by defendant, to be either fair comment or responsive to remarks made by defense counsel (People v Colon, 122 A.D.2d 151, 152).
Concur — Ellerin, J.P., Wallach, Ross and Kassal, JJ.