SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT
May 20, 1968
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
RALPH DE CASTRO, APPELLANT
Gibson, P. J., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Gabrielli, J.
Appeal from a judgment of the County Court of Sullivan County rendered April 10, 1967 upon a verdict convicting defendant of a violation of subdivision 1 of section 1751 of the Penal Law. Upon the trial, the defendant did not testify nor did he produce any witnesses which, of course, was his constitutional right and privilege. His main contention on this appeal, however, is that he was denied an opportunity to present his defense because the prosecutor called witnesses who had also been subpoenaed by the defendant. This attack upon his conviction lacks foundation and contains no merit whatsoever. The prosecution, by calling these witnesses, was in effect discharging an obligation to present all evidence bearing upon the issues. In fact, not only was the defendant not prejudiced by this procedure, but he actually received the benefit of having their testimony in chief produced with the right to elicit any additional favorable testimony from them by means of cross-examination or, if necessary, to impeach these witnesses. The establishment of any rule proscribing the District Attorney from calling witnesses solely because they had also been subpoenaed by the defense would not only be illogical but also destructive of the legal processes of any prosecution. An examination of the record reveals that the jury could properly find the defendant's guilt was established well beyond the required reasonable doubt. We have examined appellant's additional contentions all of which are without merit.
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