Wallach J. (dissenting). Defendant stands convicted of a gunpoint robbery of a gypsy cab driver aided by a knife-wielding accomplice, one Adan Mercado. Taking the stand on his own behalf, defendant told the jury that he was at home and asleep on the night of the crime when Mercado arrived in the early morning hours and announced he needed help in transporting his mother to the hospital. When defendant entered the victim’s cab ostensibly on this mission of mercy, he claimed he had been utterly taken by surprise when Mercado pulled out a knife and threatened the driver. Taking no part in the robbery, defendant said he fled from the scene as soon .as he could but was almost immediately arrested near the scene by the police.
By an offer of proof, defendant sought to call Sara Negron, his mother, to testify that he was at home and in bed at about 1:30 a.m. in the morning when Mercado came to the house and requested Arroyo’s assistance. Negron had a conversation with Mercado and then awoke defendant to accompany the latter. The trial court precluded any of this testimony, despite the People’s theory that defendant and Mercado spent the evening, preceding the robbery, out dancing and that the crime was conceived and attempted when the pair ran out of money.
The trial court’s refusal to allow defendant to call his mother to testify violated his constitutional right to call witnesses in aid of his defense. The right to call witnesses of one’s choosing is a fundamental ingredient of due process (Chambers v Mississippi, 410 US 284; Jenkins v McKeithen, 395 US 411, 429). In this State, this constitutional right is codified in CPL 60.15 (1), which states that a “defendant may as a matter of right call and examine witnesses”. This statute is supplemented by case law that the testimony of a defendant’s witness should never by prospectively excluded unless it is offered in palpable bad faith (People v Gilliam, 37 NY2d 722, revg on dissenting opn of Hopkins, J., 45 AD2d 744; People v Westergard, 113 AD2d 640, 645; People v Daly, 98 *341AD2d 803, 804, affd 64 NY2d 970; People v Forbes, 87 AD2d 829; People v Boone, 78 AD2d 461, 464; People v McClinton, 75 AD2d 900; People v Cuevas, 67 AD2d 219; People v Hepburn, 52 AD2d 958). No bad faith is suggested here.
I agree with my colleagues that this erroneous ruling, precluding the preferred testimony of defendant’s mother, is subject to harmless error analysis (see, People v Gilmore, 66 NY2d 863). In this case, however, I am not as sanguine as they that the error was harmless.
Early in its deliberations the jury sent a note to the court inquiring "whether Arroyo [defendant] is guilty of robbery I [first degree] with a gun simply because he was with Mr. Mercado.” Then, in the course of its final day of deliberation, the jury sent the court an additional note asking whether defendant should be "charged with robbery in the first degree with the knife if he did not physically participate in taking money from the plaintiff [sic]”. Although defendant claims that the court’s responses to these inquiries were erroneous, we do not agree. However, what is apparent from these jury questions is that it was giving serious consideration to defendant’s exculpatory version, and I am unable to say that the testimony of defendant’s mother might not have tipped the scales in his favor. At the very least, defendant was entitled to have this evidence corroborative of his innocence placed before the jury. In my view, this evidence was pertinent because I cannot accept the rather restrictive approach to its relevance taken by the majority. Nothing in the jurisprudence of this State has repudiated the famous dictum of Bowen, L.J.: "the state of a man’s mind is as much a fact as the state of his digestion” (Edginton v Fitzmaurice, [1885] 29 Ch D 459, 483). The state of defendant’s mind pre and post his entry into the complainant’s cab is not to be compartmentalized as a matter of law.
Accordingly, I dissent and vote for a new trial.