dissents and votes to affirm the judgment of conviction, with the following memorandum: I cannot agree with the majority’s conclusion that the defendant was denied his right to confrontation by the admission into evidence of the testimony of Patricia Lee, a witness who, at the trial, invoked her 5th Amendment right against self-incrimination. *694As per my view of the record, the charge that the hearing court’s ultimate determination "rests solely upon speculation and conjecture which, at best, may rise to the level of suspicion as to the defendant’s involvement in Lee’s refusal to testify” is unwarranted.
The substance of Ms. Lee’s Grand Jury testimony was that she had observed the defendant standing in front of the parking lot of the housing project in which they both resided at some time between 5:00 and 5:30 a.m. on March 8, 1983. At that time, the defendant was speaking with another individual and putting a black gun inside his waistband. Ms. Lee next saw the defendant on the afternoon of March 9, 1983, at which time she initiated a conversation with him. She told him that "the bread man” was dead. The defendant initially expressed disbelief and told Ms. Lee not to worry about it. When she asked him what he meant, the defendant responded that he had panicked and thought that he shot the man in the arm.
Significantly, Ms. Lee did not claim to have seen the defendant actually commit the crime. Nor did she testify that the defendant admitted having shot the victim, the driver of a bakery truck, in the chest twice. Assuming, arguendo, that her story regarding the police threats is worthy of credibility, it is ironic that such a peripheral way of falsely accusing an individual of murder was chosen. It seems likely that the police would have devised a stronger case against the defendant if indeed there was fabrication. Under the circumstances, it is not surprising that the court afforded credibility to Ms. Lee’s Grand Jury testimony rather than to her subsequent hearing testimony.
By way of affirmative evidence, the Assistant District Attorney in charge of prosecuting the instant case testified regarding his receipt of a telephone call from Ms. Lee wherein she expressed a fear of reprisal from the defendant and his family. At the time of the call, Ms. Lee was outside the jurisdiction. She claimed to have been upset that subpoenas were sent to her Brooklyn residence since she did not want her younger sister, a former girlfriend of the defendant, to know about her involvement in this case.
While direct evidence of the defendant’s involvement in Ms. Lee’s refusal to testify is scant, it must be borne in mind that the determination of a hearing court, with its peculiar advantage of having seen and heard the witnesses first hand, is entitled to great deference on appeal (see, People v Prochilo, 41 *695NY2d 759, 761; People v Gairy, 116 AD2d 733, 734). The essential issue is one of credibility, which is clearly a matter best left to the determination of the trier of facts (see, People v Malizia, 62 NY2d 755, 757, cert denied 469 US 932; People v Bauer, 113 AD2d 543). Where, as here, the only reasonable explanation which the record supports is that Ms. Lee’s reticence at the trial was attributable to pressure exerted by the defendant and/or his family, the hearing court’s determination should not be disturbed inasmuch as it is not clearly erroneous (see, People v Armstead, 98 AD2d 726).
I further disagree with the majority’s conclusion that proof of the defendant’s guilt was far from overwhelming. The record reveals that the defendant, on the morning of the felony murder, approached one Glenn Matthews and expressly asked to rent a car for the purpose of robbing a bread truck. Later that morning, an eyewitness saw three black males shoot a truck driver before fleeing in a burgundy colored car. Subsequently, the defendant returned Matthews’s car and revealed that he had committed a "stickup” in which he had had to shoot someone. In view of the compelling evidence of guilt and the equivocal nature of Ms. Lee’s Grand Jury testimony, I conclude that while the Grand Jury testimony may well have provided further evidence of the defendant’s guilt, any alleged error surrounding its admission was harmless inasmuch as the People’s case would not have been significantly less persuasive had it been excluded (see, Schneble v Florida, 405 US 427, 432).
Furthermore, the prosecutor did not abuse his discretion when he declined to offer Lee immunity, as there was no indication that Lee’s decision to invoke her right against self-incrimination was in any way the result of intimidation on the part of the prosecutor (cf., People v Shapiro, 50 NY2d 747), and Lee was not an agent of law enforcement authorities or otherwise a part of the prosecutorial apparatus (see, People v Arroyo, 46 NY2d 928; People v Sapia, 41 NY2d 160, cert denied 434 US 823).
Finally, although some of the remarks made by the prosecutor during his summation would have been better left unsaid, they cannot be said to have deprived the defendant of his right to a fair trial (see, People v Roopchand, 107 AD2d 35, affd 65 NY2d 837).
Having found the remainder of the defendant’s arguments to be totally devoid of merit, I vote to affirm the judgment of conviction.