SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT
December 12, 1968
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
WILLIE ZACHERY, APPELLANT
Appeal from judgment of Erie County Court convicting defendant of robbery, first and second degree.
Bastow, P. J., Goldman, Del Vecchio, Marsh and Henry, JJ.
Memorandum: Defendant was denied a fair trial by the prejudicial conduct of the prosecutor in calling to the witness stand a co-defendant with advance knowledge that he was going to invoke the privilege against self incrimination and refuse to answer questions (People v. Pollock, 21 N.Y.2d 206). The court, recognizing that the jury had seen the emotions that were evident while this witness was on the stand and that it was possible for the jury to draw an unfavorable inference against the defendant, attempted to rectify the error by instructing the jury to disregard whatever the witness had to say. The damage had already been done and it was too late to effectively erase that testimony from the jury's mind. In addition the co-defendant when asked to tell who held up Ben's Pawnshop replied that he had made a statement to the effect that Willie Zachery (defendant) was one of the men who helped him. Because there will be a new trial another impropriety should be mentioned in order that it may not be repeated. It was error for the prosecutor to elicit from two co-defendants upon direct examination that each had pleaded guilty to a count of the indictment upon which the defendant was being tried. (People v. Edwards, 282 N. Y. 413.)
Judgment unanimously reversed on the law and facts and a new trial granted.
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