Opinion
November 7, 1994
Appeal from the Supreme Court, Queens County (Orgera, J.).
Ordered that the judgment is affirmed.
Before a defense witness may be cross-examined regarding his or her failure to provide law enforcement authorities with exculpatory information attested to at trial, certain foundational requirements must be met (see, People v. Dawson, 50 N.Y.2d 311, 321, n 4). Here, the prosecutor clearly complied with the well-settled foundational dictates set forth by the Court of Appeals in People v. Dawson (supra), prior to cross-examining the defense witness. Moreover, the court's instructions were adequate to inform the jury that the defense witness had no obligation to volunteer exculpatory information to law enforcement authorities (see, People v. Dawson, supra).
Further, the defendant's failure to request a bench conference relieved the trial court of any such obligation under People v Dawson (supra) (see, People v. Koleskor, 131 A.D.2d 879).
Additionally, the defendant asserts that the prosecutor improperly commented on the defense witness's prior silence during summation. The defendant's allegation is unpreserved for appellate review, because the defendant failed to make any objection at trial to the summation comments he now claims were improper (see, People v. Dawson, 50 N.Y.2d 311, 324, supra, citing People v. Williams, 46 N.Y.2d 1070; see also, People v Ray, 155 A.D.2d 625, 626). In any event, the prosecutor's comments were proper comments on the credibility of the defense witness and were fair responses to the defense counsel's summation (see, People v. Ashwal, 39 N.Y.2d 105; see also, People v. Cheatham, 205 A.D.2d 794, citing People v. Aviles, 176 A.D.2d 584; People v Williams, 174 A.D.2d 494).
The trial court correctly found that the information provided to the arresting officer was sufficient to establish probable cause for a warrantless arrest. At the suppression hearing, there is no requirement for the People to produce the officer who observed the illegal activity in order to establish probable cause, if, as here, both requirements of the Aguilar-Spinelli test, i.e., the informant's reliability and basis of knowledge (see, Spinelli v. United States, 393 U.S. 410; Aguilar v. Texas, 378 U.S. 108), are satisfied (see, People v. Parris, 83 N.Y.2d 342, 348).
The defendant's assertion that the sentence was excessive is without merit (see, People v. Suitte, 90 A.D.2d 80).
We have considered the defendant's remaining contentions, including those raised in his supplemental pro se brief, and find them to be without merit. Lawrence, J.P., Pizzuto, Friedmann and Krausman, JJ., concur.