People v Espaillat

People v Espaillat 2008 NY Slip Op 00561 [47 AD3d 540] January 29, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 12, 2008

The People of the State of New York, Respondent,
v
Feliciano Espaillat, Appellant.

—[*1] Jonathan E. Weinrich, New York City, for appellant.

Robert T. Johnson, District Attorney, Bronx (Tracy Siligmueller of counsel), for respondent.

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 five 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 NY2d 241, 247 [1981]; People v Sapia, 41 NY2d 160, 164-166 [1976], cert denied 434 US 823 [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 NY2d at 248), and we reject defendant's arguments to the contrary. Concur—Lippman, P.J., Mazzarelli, Gonzalez, Sweeny and Acosta, JJ.