People v. Luft

Per Curiam. The trial court, over objection and exception, erroneously permitted the People to elicit from defendant, upon cross-examination, the fact that when under arrest defendant had refused to answer any questions concerning his relations with the two complaining witnesses. It is the rule in this State that a defendant under arrest is under no duty to speak or to deny any accusation made against him. Testimony of silence of the defendant as an admission in such circumstances constitutes error. (People v. Rutigliano, 261 N. Y. 103, 106, 107; People v. Dolce, Id. 108; People v. Marendi, 213 id. 600, 613; People v. Smith, 172 id. 210, 234. Cf. also Commonwealth v. McDermott, 123 Mass. 440; Bulfer v. People, 141 Ill. App. 70, 77; McCarthy v. United States, 25 F. [2d] 298.) Defendant was adjudged guilty by the vote of a divided court. His guilt was not so clearly established by other evidence in this case as to justify the conclusion that this error was harmless. The judgment of conviction should accordingly be reversed and a new trial ordered. Present — Martin, P. J., O’Malley, Townley, Cohn and Callahan, JJ.; O’Malley, J., dissents and votes to affirm.