PEOPLE v. WEBSTER (1998)

Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Cirigliano, J.), rendered October 22, 1996, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing (Angiolillo, J.), of those branches of the defendant's omnibus motion which were to suppress identification evidence and a statement made by the defendant to law enforcement officials.

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, 557 N.Y.S.2d 415;  see also, People v. Fuentes, 240 A.D.2d 511, 658 N.Y.S.2d 442;  People v. Macovey, 234 A.D.2d 393, 651 N.Y.S.2d 873;  People v. Paul, 222 A.D.2d 706, 636 N.Y.S.2d 80).

 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, 663 N.Y.S.2d 861;  People v. Bowen, 229 A.D.2d 954, 645 N.Y.S.2d 381;  People v. Ripic, 182 A.D.2d 226, 587 N.Y.S.2d 776), and, in any event, the foreign law enforcement officials were not bound by the mandates of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (see, U.S. v. Maturo, 2nd Cir., 982 F.2d 57, cert. denied 508 U.S. 980, 113 S.Ct. 2982, 125 L.Ed.2d 679;  U.S. v. Covington, 9th Cir., 783 F.2d 1052, 1056, cert. denied 479 U.S. 831, 107 S.Ct. 117, 93 L.Ed.2d 64).

 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, 615 N.Y.S.2d 656, 639 N.E.2d 13;  People v. Rodriguez, 38 N.Y.2d 95, 378 N.Y.S.2d 665, 341 N.E.2d 231;  People v. Ortiz, 209 A.D.2d 332, 333, 619 N.Y.S.2d 12;  People v. Thomas, 169 A.D.2d 553, 554, 564 N.Y.S.2d 406).   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, 482 N.Y.S.2d 250, 472 N.E.2d 26).

 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, 582 N.Y.S.2d 992, 591 N.E.2d 1178, quoting People v. Pobliner, 32 N.Y.2d 356, 369, 345 N.Y.S.2d 482, 298 N.E.2d 637) (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, 651 N.Y.S.2d 559;  People v. Washington, 182 A.D.2d 791, 582 N.Y.S.2d 740;  People v. Webb, 179 A.D.2d 707, 578 N.Y.S.2d 579;  People v. Wood, 79 N.Y.2d 958, 582 N.Y.S.2d 992, 591 N.E.2d 1178).

The defendant's remaining contentions are unpreserved for appellate review or without merit.

MEMORANDUM BY THE COURT.