People v. Owens , 282 N.Y.S.2d 19 ( 1967 )

Christ, Benjamin and Munder, JJ., concur: Beldock, P. J., and Rabin, J., dissent and vote to affirm the judgment, with following memorandum: In People v. Caparelli (21 A D 2d 882), this court held that it was prejudicial error for the trial court to refuse to allow a defendant to call his codefendant to the stand. We there stated: “In all criminal prosecutions, the accused has the right to have compulsory process for obtaining witnesses in his favor (U. S. Const., 6th Arndt.; Civil Rights Law, § 12). As stated by the Court of Appeals: ‘Notwithstanding the strong evidence against defendant and the possibility or even a probability that Mrs. Jessmer would refuse to answer questions if sworn as a witness, we are of the opinion that the error in refusing to order her to be produce-! in court is not such a technical error as does not affect defendant’s substantial rights’ (People v. Wells, 272 N. Y. 215, 216-217).” In the light of our holding in Caparelli, it is our opinion that it was not prejudicial error for the trial court herein to require appellant to take the stand, at the behest of his eodefendant, particularly in view of the fact that the court promptly instructed and charged the jury that appellant’s failure to testify did not create any presumption against him. Wldle no motion for a severance was made in Caparelli prior to the calling of the codefendant as a witness, whereas, at bar, a motion for a severance was made by the eodefendant, it is nevertheless significant that no motion therefor was made by appellant at bar and his attorney only moved for a mistrial after appellant took the stand. Accordingly, appellant’s claim that he was prejudiced because he was called as a witness and was compelled to invoke his constitutional privilege against incrimination, should be rejected as being without merit. The judgment should, therefore, be affirmed.