As in the case of People v Mendoza *393(72 AD2d 608, 609), there has been no showing of prejudice to the defendants. There is no dispute between them as to the fact of their participation in the events leading to the death of John Marmo. Indeed, they both testified before the Grand Jury, and their view of events was that Albert had provided Richard with guns solely out of paternalism and that Richard fired solely because of fear and because Albert had said not to let anyone enter.
These defendants, father and son, had but one defense— justiñcation. If Richard had pulled the trigger, his father admitted putting the finger on it. The aiding and abetting on Albert’s part flows not just from Richard’s statement, but also from his description of his own acts in providing the weapons and ordering Richard to let no one enter. In this particular case, the defendants are not really in separate legal positions, and they jointly sought the protection of justification.
Further, I reject the contention that separate counsel would have made any difference in the decision of Richard or Albert to not testify in their own defense.
These defendants were being tried as accomplices, and all of their actions related to their concern and conduct in regard to the decedent were admissible against each other. Any fear counsel expressed as to Albert’s pending indictment had to do with the cross-examination of Albert and had nothing to do with Richard. The record establishes that Richard was in custody of the police when the alleged burglary and larceny (theft of guns from the decedent’s residence) was committed by Albert. The record presents no basis for being concerned that Richard could be cross-examined as to the pending indictment or that it had anything to do with the decision not to have Richard testify.
The present situation is not unlike that described in the case of People v Gonzalez (30 NY2d 28, 34): "In sum, a careful review of the record discloses no conflict of interests. To the contrary, the record establishes that counsel was thorough and diligent in preparing this case and protecting the interests of his clients.” In any event, the conduct of Albert in going to the decedent’s residence and burglarizing it or taking the rifles was relevant to the crime charged, manslaughter, and was admitted against both defendants. Cross-examination of Albert could have been damaging to Richard and it is entirely consistent to view the failure of Albert to testify as being in Richard’s favor.
*394This is not such a case as to present conflicting defenses or subtle inconsistencies. Unlike the case of People v Fioretti (49 NY2d 976), there was no complaining witness to be refuted and such testimony as was damaging to either defendant was damaging to both and not subject to refutation. As indicated in the case of People v Macerola (47 NY2d 257, 264), the mere failure of the Trial Judge to inquire on the record as to the use of a single attorney does not require a reversal of a judgment of conviction.
Finally, the District Attorney, in his response to the request for a suppression hearing as to the Grand Jury minutes, expressly affirmed that the defendants waived immunity "upon the advice of counsel”. The defendants’ motion was made upon information and belief of their counsel, who asserted that they involuntarily testified. Upon this record, there was no showing of facts sufficient to require a Huntley hearing.
The remaining errors urged by defendants would not warrant reversal because of the overwhelming proof of guilt. I find that the sentences imposed were not excessive.
The judgments should be affirmed.
Sweeney, Main and Mikoll, JJ., concur with Greenblott, J. P., Herlihy, J., dissents and votes to affirm in a separate opinion.
Judgments reversed, on the law, and a new trial ordered.