Our dissent and vote for affirmance of the conviction of the defendant is limited to the two grounds which the majority rely upon for reversal.
1. Failure to instruct the jury as requested by the defendant, as follows: “ Defendant requests the Court to charge with respect to the failure of the District Attorney to call as a witness Mabel Seeley Moore that the strongest inferences may be drawn against the prosecution, which the opposing evidence in the record permits.”
2. The delay between the commission of the crime and the commencement of the criminal prosecution.
As to the failure to charge as requested, in the present status of the law in criminal cases, the defendant and his counsel are entitled to a copy of any statement in the possession of the prosecutor and if the witness appeared and testified before the Grand Jury, the defendant and his counsel are entitled to a copy of such testimony. Thus, there has been a substantial change in the procedural and evidentiary aspects of a criminal case since People v. Fiori (123 App. Div. 174) and the other cases cited in the majority opinion. When, under these circumstances, the witness does not testify for either party, for such a request to be charged is prejudicial to the rights of the People,
*64In this present case, the counsel for defendant had a copy of the statement of the witness; she did not testify before the Grand Jury, nor was she the prosecutrix. Counsel then called the witness on the defendant’s case and proceeded to examine her and, in our opinion, the trial court was entirely correct in denying the request to charge in the wording as set forth above. There is no issue of “ control ” in this case, as suggested by the majority, when the defendant calls the witness to the stand.
From a reading of the record, it is quite apparent that the District Attorney did not call this witness, knowing that if he did, the trial would develop into the issues of a pending divorce action. The prosecutor, being satisfied that he had introduced sufficient proof of the alleged crime, should not, under the penalty of a threatened charge, be compelled to produce other witnesses and offer additional and ofttimes cumulative proof. The defendant should not exercise control over the case of the prosecution any more than the prosecutor should exercise control over the case of the defense. People v. Rides (273 N. Y. 214) has no application to the factual situation here. We will limit ourselves to the present factual situation in deciding that the refusal of the court to charge as to the failure to call a witness was proper and did not constitute reversible error.
As to the second point of unreasonable delay, the prosecution was confronted with the usual problem in sex cases. As has been aptly stated, these crimes do not happen in the light of day but under cover of darkness and without witnesses. It is a pattern with children, and quite understandable, that they often fail to disclose sexual acts because of threats, fear of harm or fear of punishment to themselves. Where, as here, the relationships are within the confines of the family, there is even greater cause for failure to reveal. Concededly, in this case, there is some association between the divorce proceedings and the commencement of the criminal action but there is no evidence in the record to show that the mother knew of any acts of intercourse between her husband and her daughter until the case broke. The young girl testified on cross-examination that she stopped having relations with the defendant “ Because he was getting a divorce and I didn’t want anything more to do with him”. Defense counsel asked the following question: “ The only reason then that you stopped having relations with him is because the defendant was suing your mother for divorce, isn’t that so? ”, to which the witness answered “ Yes ”.
From this line of questioning, together with questions directed to the mother of the young lady, the jury was apprised of the fact that the divorce proceedings had some association with *65the criminal prosecution and the jury was in a position to perceive whether the girl was prevaricating. (People v. Conklin, 15 A D 2d 514, affd. 11 N Y 2d 1086.) While we feel the court would have been justified in permitting a limited examination of the witness as to the pending divorce and the affidavits used thereon, under the circumstances and from the record as a whole, we do not feel the refusal constituted reversible error.
We are of the opinion that there was a sufficiency of knowledge before the jury of the relationship between the young lady, the witness mother and wife and her defendant husband. We are of the firm belief that the observation of the witnesses, the manner and method of giving their testimony, together with a generally acceptable charge to which no exception was taken, ordinarily permit the jury to properly resolve the issues as to credibility, veracity, motivation and other human reactions and deciding whether the proof is clear and convincing in determining the guilt or innocence of the defendant. There are, of course, exceptions to all rules but the record herein does not present any such exception. Under all the circumstances, we find no basis for a reversal because of inexcusable delay in starting the criminal proceedings.
The judgment of conviction should be affirmed.
Gibson and Taylor, JJ., concur with Bergan, P. J.; Herlihy and Reynolds, JJ., dissent, in an opinion.
Judgment reversed, on the law, and a new trial ordered.