Opinion
June 2, 1989
Appeal from the Erie County Court, McCarthy, J.
Present — Callahan, J.P., Doerr, Boomer, Lawton and Davis, JJ.
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 dismissal 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 A.D.2d 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 N.Y.2d 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.