I cannot vote to affirm the instant conviction, carrying with it a prison sentence of 15 years to life, in view of the Trial Judge’s candid concession that exculpatory testimony was being withheld from the jury.
Earl Fodderell, reputed to be one of the 10 largest distributors of narcotics in New York City, decided to co-operate with local police officers after pleading guilty to Federal charges; and was eventually "registered” as a confidential informant. Though Fodderell received no money for his subsequent services, the fact of his co-operation was brought to the attention of the sentencing Judge in his Federal case.
Fodderell’s disclosures involved defendant Sapia and an individual named Gardner, all of whom shared the same Bronx residence address. Through Gardner, undercover officer Hayward met defendant and, on two separate occasions, purchased from him a substantial sum of narcotics for approximately $40,000.
Defendant’s involvement in these sales is undisputed. Aside from the "live” testimony of the undercover officer and his back-up team, tape recordings and videotapes were introduced into evidence clearly establishing defendant’s "guilt”. My only concern is whether defendant was improperly precluded from establishing a viable entrapment defense.
Although tape recordings of conversations with Fodderell were introduced as evidence-in-chief, he was not called as a prosecution witness. Appellant’s contention that the People were required to call Fodderell as a witness in order to permit confrontation and cross-examination is not persuasive. Fodderell’s role in the investigation which led to defendant’s (and Gardner’s) arrest was limited. His information initiated the inquiry; and he introduced the undercover officer to the potential source of drugs. Under the circumstances of this case, I *530would agree with respondent that, except to the extent herein-below indicated, its constitutional obligations were met when Fodderell’s identity was disclosed.
However, the inability of the defense to obtain Fodderell’s testimony presents a much different situation.
Entrapment is an affirmative defense. (Penal Law, § 40.05.) Defendant initially attempted, unsuccessfully, to interpose such defense through the introduction of a pre-arrest (but post-sales) tape recording of a conversation between himself and his attorney in which it was allegedly claimed that Fodderell provided the narcotics sold to the undercover officer and was the recipient of the proceeds of such sales. The Trial Judge ruled this evidence inadmissible and suggested that Fodderell be called as a defense witness. Defense counsel opposed the suggestion; but reconsidered after the court adhered to its ruling on the proffered tape.
Fodderell was interviewed by defense counsel at the Federal House of Detention (where he was serving a 12-year sentence on Federal drug charges, awaiting determination of a resentence application predicated on his police co-operation and disposition of other pending charges). After the interview, he was brought to court with his attorney who stated that his client would invoke his privilege against self incrimination and refuse to answer all material questions unless granted immunity.
After an in camera discussion with Fodderell’s lawyer, the Trial Judge summarized Fodderell’s potential testimony "if believed by the jury, [as] exculpatory”; and declared that he would have granted the witness immunity, in the event the privilege was invoked, if he had the power to do so. The prosecutor, however, despite the court’s telephone call to the trial assistant’s superior, refused to expressly request the conferring of immunity (CPL 50.30); a decision which "genuinely saddened” the court.
An obviously still disturbed and dissatisfied Trial Justice put Fodderell on the stand, outside the presence of the jury, and asked him to state his position with respect to answering questions concerning his activities in the instant case. Fodderell responded: "Well, my position is that I don’t know. I just tried to explain to him, I hope I’ll be able to speak freely. I don’t want to see an innocent man go to jail for something he’s totally not responsible for. Then on the other hand, I *531don’t want to incriminate myself. I don’t want to be prosecuted because I’m doing enough time.” (Emphasis added.)
Fodderell vacillated between testifying and not testifying, finally deciding not to become a witness; apparently concerned because a statement given in Federal court might expose him to a perjury conviction.
Although it does not conclusively so appear in the record, the Trial Judge clearly indicated that Fodderell’s proposed testimony would have been relevant to an entrapment defense. Even under the "subjective” theory of entrapment (depending on whether Sapia had the requisite predisposition to commit the crimes), a factual issue was presented which requires a jury determination. (See United States v Russell, 411 US 423.) The District Attorney’s speculations to the contrary notwithstanding, we can only conjecture as to the verdict if, for example, it was disclosed that Fodderell gave Sapia the drugs which were then passed on to Hayward and received all of the money paid by the undercover officer.
Equally devoid of merit, in my view, are respondent’s surmises as to the heretofore undiscovered crimes possibly committed by Fodderell which will escape prosecution if he is given transactional immunity. (CPL 50.10.) No amount of guesswork should be permitted to deprive a defendant sentenced to a 15-year-to-life prison term of a fair trial. In the circumstances of this case, assuming Fodderell could invoke his Fifth Amendment privilege (which is somewhat questionable since he was co-operating with the police and lacked the criminal intent necessary to commit the instant crimes), the refusal of the prosecutor to request immunity for Fodderell effectively deprived defendant of his Sixth Amendment right to have compulsory process for obtaining witnesses in his behalf. It seems to me that respondent’s fear of Fodderell’s disclosure of unrelated crimes, thereby obtaining complete absolution, if legally or factually valid, could have been dispelled by appropriate agreement or stipulation framing the questions to be asked and limiting them to these transactions. A right sense of justice required no less.
Additionally, I believe the court’s refusal to allow defense counsel to hear a tape recording of defendant’s post-indictment interview by the police was prejudicial error.
Defendant was concededly interrogated after arrest and indictment, in the absence of his retained counsel. The interview was for the purported purpose of enlisting his co-opera*532tion in an assertedly unrelated matter. Although the Trial Judge, who heard the tape, concluded that it had no bearing on the instant case, a transcript thereof should have been furnished defense counsel. Though the information disclosed was apparently not used as evidence against defendant (Massiah v United States, 377 US 201), any disclosure obtained could have been used to impeach defendant and thus could have had a chilling effect on his option to testify in his own behalf. (Cf. Harris v New York, 401 US 222.)
In light of the foregoing, defendant’s conviction should be reversed and a new trial directed.
Stevens, P. J., Lupiano and Nunez, JJ., concur with Lane, J.; Murphy, J., dissents in an opinion.
Judgment, Supreme Court, New York County rendered on November 14, 1974, affirmed.