PEOPLE v. ESCOBAR, 36 N.Y.2d 883 (1975)

372 N.Y.S.2d 213, 334 N.E.2d 12

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ROBERTO ESCOBAR, Appellant.

Court of Appeals of the State of New York.Submitted May 2, 1975
Decided June 4, 1975

Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, JOSEPH A. MARTINIS, J.

Page 884

Herbert J. Adlerberg for appellant.

Robert M. Morgenthau, District Attorney (Jonathan Lovett of counsel), for respondent.

MEMORANDUM. The order of the Appellate Division should be affirmed.

Following the completion of the summations, defendant’s counsel requested the trial court to reopen the trial to permit defendant to introduce recantation testimony from one of the People’s witnesses. Such an application is addressed to the discretion of the Trial Judge. In the circumstances here, and particularly in the light of the evident pique of the witness because the prosecutor insisted on adhering to the promise his office originally made to her (to report her co-operation to her sentencing court) and refused to discuss the matter further, we find no abuse in the exercise of such discretion. We note additionally that it was open to defense counsel to make an appropriate postconviction motion.

Nor was it error in the circumstances disclosed in this record to refuse to conduct an independent preliminary inquiry as to whether defendant’s correspondent, at the time of the exchange of letters between them, was acting as agent of police or prosecution. There was no evidence before the court other than the defense counsel’s “bold, naked statement”, a speculative hypothesis.

Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur in memorandum.

Order affirmed.