dissent and vote to reverse in a memorandum by Levine, J. Levine, J. (dissenting). In our view, reversal and a new trial are required because of prosecutorial misconduct, permitted by County Court, in repeatedly and persistently questioning codefendant Randy Edington on the witness stand concerning defendant’s identity as the other perpetrator of the robbery. The prosecutor and the court were informed at a preliminary hearing in chambers that Edington would refuse to identify defendant as the person who participated in the crime with him, because of fear of reprisals by inmates during the term of imprisonment he was about to begin serving on his own conviction for the instant crimes. At this point, the entire focus of the case was directed at Edington’s defiance, rather than at achieving a proper balance between the prosecution’s need, if any, to call Edington as a witness and the prejudicial effect on the jury of Edington’s unwillingness to name who was with him, under circumstances in which his knowledge of that fact was clear. The prejudicial effect of this scenario on an accused’s right to a fair trial and that a curative instruction is unavailing to overcome it has been frequently recognized see, e.g., People v Pollock, 21 NY2d 206, 212-213; People v Sifford, 76 AD2d 937, 938; People v Paulino, 60 AD2d 769, 770; People v Zachery, 31 AD2d 732). The court threatened Edington with a sentence of 30 days in jail for contempt each time he refused to identify his accomplice and to recommend to the Parole Board that he serve his full, maximum sentence; but Edington remained adamant. The claims of prejudice advanced by defense counsel were summarily rejected. Thereupon, Edington was called to testify in the presence of the jury. He willingly responded to all of the prosecutor’s initial questions, freely admitting that *441he and another person had robbed and assaulted the victim and, describing their acts, corroborated fully the victim’s testimony. Edington was also asked and answered questions that made clear to the jury that the identity of the other perpetrator was well known to him. Only then did the prosecution press for identification. All in the presence of the jury, Edington was asked, no less than 10 times, to name his accomplice, each time then being directed by the court to answer and being held in contempt upon his refusal to do so.
The spectacle of Edington’s adamant uncooperativeness, even in the face of the severe sanctions the court repeatedly imposed, could have left the jury with no doubts that Edington was shielding his friend, defendant. Indeed, the very same inference was made here by County Court in denying defendant’s motion for a mistrial upon the ground that defendant was not prejudiced by the foregoing procedures, since if Edington had been truthfully responsive to the questions, he would only have incriminated defendant.
The prosecution’s professions of good faith and legitimate reasons to call Edington to the witness stand are incredulous, at best. First, it is claimed that Edington’s testimony was necessary to prove the various elements of the robbery counts of the indictment. However, the victim’s testimony fully established those elements. Moreover, the commission of the robberies in the degrees charged was never contested by the defense. As defense counsel’s opening statement indicated, "Nobody doubts that [the victim] was robbed * * * The issue in this case is very simply one of identification.” It was also argued that the prosecution was justified in calling Edington and asking him to identify defendant in order to ascertain whether he might have changed his mind about thus testifying upon reaching the witness stand. Apart from the unequivocal, firm refusal expressed by Edington at the conclusion of the preliminary hearing in chambers, even after being exposed to the full, coercive pressure of the court, this rationalization for calling Edington as a witness does not support the persistent questioning on the subject.
Finally, it is claimed that any error was not prejudicial, since the proof of guilt was "overwhelming”. The People’s evidence consisted of the victim’s identification, defendant’s driver’s license found at the scene where the victim was abandoned and defendant’s admission that he had been with Edington the night of the robbery. Defendant testified that he and Edington had indeed been together earlier that evening with several others, but later separated. This was supported *442by defendant’s alibi witness. There were significant discrepancies between the victim’s description of his assailant given to the police and defendant’s actual physical appearance. Although, certainly, the prosecution’s proof was sufficient to support the verdict, if the jury had entertained doubts about the accuracy of the victim’s courtroom identification of defendant, Edington’s testimony that he and defendant remained together and committed the crime would have been critical in disproving defendant’s alibi defense. This is the obvious explanation for the prosecution’s tactics in calling him as a witness and using his persistent refusals to name the person who was with him as the means of planting with the jury the inference that he was protecting defendant. And this implication was injected in the case by the prosecutor without exposing Edington to cross-examination of his nontestimony.
In all of the foregoing respects, the instant case is entirely distinguishable from People v Berg (59 NY2d 294), principally relied upon by the prosecution to support its contention that permitting this stratagem was within County Court’s discretion. In Berg, it was the victim and complaining witness himself who refused to testify. His reluctance was far more equivocal and the testimony sought was essentially collateral to the issues actually in dispute. Most importantly, in Berg there was not the persistent questioning on the same subject followed by repeated contempt citations, all in the presence of the jury, as occurred here. That the Court of Appeals did not intend to sanction the latter procedures by its decision in Berg is evident from the court’s principal reliance (id., p 298) on United States v Vandetti (623 F2d 1144). The court in Vandetti, however, condemned the very tactics employed by the prosecution here as per se grounds for reversal: "In the most extreme case, presentation of such a witness is obviously unfair, as when there is extensive questioning after the prosecutor knew that the privilege would be asserted” (id., p 1147 [emphasis supplied]). The Vandetti decision further holds that, even when the trial court in its discretion finds a legitimate reason for the prosecution to call a recalcitrant witness to the stand, once "it is clear the witness is unwilling to testify, that fact is the only relevant testimony beyond identity the witness can give, and continued questioning cannot be for the purpose of eliciting relevant testimony but only for the purpose of creating prejudice” (id., p 1150 [emphasis supplied]; see also, United States v Mayes, 512 F2d 637, 649-650, cert denied 422 US 1008).
Since the prosecution’s use of the witness Edington deprived *443defendant of both his constitutional rights to a fair trial and of confrontation, we would reverse and order a new trial.