(dissenting). I vote to reverse and order a new trial. Appellant and two others were tried jointly for murder. At the trial, in addition to appellant’s own confession, the unredacted confessions of his codefendants were received in evidence over appellant’s objection, the jury being instructed to consider each confession only against the one who made the confession. This I believe was error and constituted a denial of appellant’s right of cross-examination secured by the Confrontation Clause of the Sixth Amendment. (People v. Jackson, 22 N Y 2d 446; Bruton v. United States, 391 U. S. 123; Roberts v. Russell, 392 U. S. 293.) If effective redaction is not possible, appellant is entitled to a separate trial at which the extrajudicial statements of his accomplices will be excluded. (People v. Jackson, supra; People v. Boone, 22 N Y 2d 476.)
We cannot say that there was no prejudice to appellant because he too confessed. Such a confession, or other legally sufficient evidence upon which to base a conviction, does not *512neutralize ‘ ‘ ‘ the substantial risk that the jury, despite instructions to the contrary, looked to the incriminating extrajudicial statements in determining [appellant’s] guilt’” (People v. Boone, supra, p. 484.) In People v. Jackson (supra), the New York Court of Appeals reversed the conviction despite the fact that there too the defendant had confessed. (See, also, Evans v. United States, 375 F. 2d 355, revd. sub nom. Bruton v. United States, supra.)
It is urged that in view of the fact that no motion for a severance was made in the trial court, the constitutional question has not been preserved for appellate review. The basis for such a position is that appellant’s failure to move for a separate trial may well have been a tactical maneuver calculated to put before the jury the conflicts in the various confessions. There is no certainty that the failure to move for a severance was a tactical maneuver and we should not deprive a man of a constitutional right on mere speculation. However, even assuming the failure to move for a severance were a tactical maneuver, I am constrained to conclude that appellant’s constitutional rights have been violated. In Evans v. United States (supra), revd. sub nom. Bruton v. United States (supra), the United States Court of Appeals for the Eighth Circuit affirmed a conviction, relying in part upon the defendant’s failure to move for a severance and hypothesizing that such failure was a tactical maneuver. Nevertheless, the United States Supreme Court reversed and ordered a new trial on the ground of denial of the right of confrontation. It is quite apparent, therefore, that the failure to move for a severance is not here fatal, and the objection to the prejudicial matter at trial was sufficient to preserve appellant’s Sixth Amendment contention. (See Evans v. United States, supra, revd. sub nom. Bruton v. United States, supra. See, also, People v. Pollack, 21 N Y 2d 206.)
Steuer, J. P., McGivern and McNally, JJ., concur with Tilzer, J.; Rabin, J., dissents in opinion.
Judgment of conviction affirmed.