56 Misc. 2d 852 | New York County Courts | 1968
This is a motion for an order directing a separate trial of the defendant Robert A. Shuttleworth.
This indictment charges five defendants with the commission of perjury and other acts and contains some 49 counts. The indictment charges that each of the acts and transactions forms part of a common scheme and plan. There is no question but that the request by defendant is addressed to the court’s discretion (Code Grim. Pro., §§ 279, 391).
The defendant urges as a primary reason for making this request that he intends to call as witnesses one or more of his codefendants; that he has made inquiry of counsel for those defendants and has been informed that they are not inclined at this time to comply with this request. As counsel indicates, “ this did not surprise him ”, and urges this court to follow precedent and grant his application for separate trials. The court has reviewed the cases cited and does not agree with counsel that the interests of justice and judicial precedent require such a disposition. If such were the case, all that would be required in any instance when there is more than one defendant named in an indictment is for the one seeking a separate trial to indicate to the court that it is his intention to call a codefendant as a witness and thus be entitled to an order granting the severance. Such is not yet the status of the law.
Defendant cites People v. Caparelli (21 A D 2d 882) as authority requiring this court to grant the instant motion. In that
In People v. Hannon (50 Misc 2d 297) defendant and two others were jointly charged with conspiracy, the facts were such that a codefendant indicated a desire to call other codefendants, have them sworn as witnesses and despite objections of their counsel and notwithstanding the possibility or even the probability that if sworn they would invoke their constitutional immunity from self incrimination, attempt to require their testimony. It is equally clear from the reading of the case that the purpose of calling the codefendants was to place the criminal responsibility for the acts charged solely upon them and to exculpate himself from criminal responsibilty. While in the Hannon case the trial court granted the motion, it appears clear that the factual situation does not pertain to the instant case.
Ordered that, should the circumstances during the trial of this case require defense counsel for any defendant to call a codefendant as a witness that he shall indicate such intention to the court outside the presence of the jury, at which time the court will take such steps as it may deem appropriate to insure that neither the defendant nor the codefendant to be called as a witness shall be prejudiced thereby, and the court further directs that should a defendant refuse to testify based upon a claim of Fifth Amendment protection neither defense counsel nor the prosecutor may comment thereon.