PEOPLE v. ESPAILLAT (2008)

Judgment, Supreme Court, Bronx County (Thomas Farber, J.), rendered June 1, 2005, convicting defendant, after a jury trial, of scheme to defraud in the first degree, grand larceny in the fourth degree and unauthorized practice of a profession in violation of Education Law § 6512, and sentencing him to a term of 5 years' probation, unanimously affirmed.

In this case involving unauthorized practice of dentistry, the trial court properly refused to compel the prosecutor to grant immunity to defendant's former office manager (see People v. Adams, 53 N.Y.2d 241, 247, 440 N.Y.S.2d 902, 423 N.E.2d 379 [1981];  People v. Sapia, 41 N.Y.2d 160, 164-166, 391 N.Y.S.2d 93, 359 N.E.2d 688 [1976], cert. denied 434 U.S. 823, 98 S.Ct. 68, 54 L.Ed.2d 80 [1977] ).   The office manager was not an agent of law enforcement, the prosecution did not build its case with immunized witnesses or threaten the potential witness with a perjury prosecution, and defendant's inability to call the manager as a witness did not adversely affect his defense.

The court properly instructed the jury to draw no inference against either side due to the office manager's failure to testify (see People v. Adams, 53 N.Y.2d at 248, 440 N.Y.S.2d 902, 423 N.E.2d 379), and we reject defendant's arguments to the contrary.