Opinion
March 30, 1998
Appeal from the Supreme Court, Westchester County (Cirigliano, J.).
Ordered that the judgment is affirmed.
A witness was properly permitted to make an in-court identification of the defendant notwithstanding her tainted pretrial identification of him because the People demonstrated by clear and convincing evidence that the witness's in-court identification was based upon her observation independent of the suggestive pretrial identification procedure ( see, People v. Hyatt, 162 A.D.2d 713, 714; see also, People v. Fuentes, 240 A.D.2d 511; People v. Macovey, 234 A.D.2d 393; People v. Paul, 222 A.D.2d 706).
The hearing court properly denied that branch of the defendant's omnibus motion which was to suppress a statement he made while he was a patient in a hospital outside the United States to law enforcement officials of a foreign country. The statement was given in a noncoercive setting despite the defendant's medical condition, which rendered him immobile ( see, People v. Bongiorno, 243 A.D.2d 719; People v. Bowen, 229 A.D.2d 954; People v. Ripic, 182 A.D.2d 226), and, in any event, the foreign law enforcement officials were not bound by the mandates of Miranda v. Arizona ( 384 U.S. 436) ( see, United States v. Maturo, 982 F.2d 57, cert. denied sub nom. Pontillo v. United States, 508 U.S. 980; United States v. Covington, 783 F.2d 1052, cert. denied 479 U.S. 831).
Contrary to the defendant's contention, a missing-witness charge is inappropriate when a witness has asserted his or her privilege against self-incrimination and is unavailable to both parties ( see, People v. Macana, 84 N.Y.2d 173, 177; People v. Rodriguez, 38 N.Y.2d 95; People v. Ortiz, 209 A.D.2d 332, 333; People v. Thomas, 169 A.D.2d 553, 554). Further, the record did not indicate any improvident exercise of discretion on the prosecutor's part in not granting this witness immunity ( see, CPL 50.30; People v. Owens, 63 N.Y.2d 824).
The defendant's contention that admission of a photograph of the victim's decomposed body was unduly prejudicial is without merit. Generally, "photographs [of the deceased] are admissible if they tend to `prove or disprove a disputed or material issue, to illustrate or elucidate other relevant evidence, or to corroborate or disprove some other evidence offered or to be offered.' They should be excluded `only if [their] sole purpose is to arouse the emotions of the jury and to prejudice the defendant'" ( People v. Wood, 79 N.Y.2d 958, 960, quoting People v. Pobliner, 32 N.Y.2d 356, 369) (emphasis in original). The probable time of death was a material issue in this case. Therefore, the photograph of the decomposed body of the victim was relevant and necessary to this issue ( see, People v. Pobliner, supra; People v. DeBerry, 234 A.D.2d 470; People v. Washington, 182 A.D.2d 791; People v. Webb, 179 A.D.2d 707; People v. Wood, 79 N.Y.2d 958, supra).
The defendant's remaining contentions are unpreserved for appellate review or without merit.
Mangano, P. J., Miller, Ritter and Thompson, JJ., concur.