Opinion
June 28, 1961
Appeal from the Erie County Court.
Present — Williams, P.J., Bastow, Goldman, Halpern, and Henry, JJ.
Judgment of conviction unanimously reversed on the law and facts and a new trial granted. Memorandum: Error which may have misled the jury and influenced the verdict was committed by the trial court in failing to grant defendant's motion to strike out testimony of a police officer that defendant had refused to make a statement when he was in custody at police headquarters. A person in custody accused of a crime has no duty to speak and evidence may not be introduced to show that the defendant refused to make a statement. ( People v. Travato, 309 N.Y. 382.) The trial court instead of striking out the testimony and informing the jury that defendant was under no obligation or duty to speak said "It is acceptable to interpretation one way or the other" thereby compounding the error and permitting the jury to speculate as to the interpretation they would put on his failure to make a statement. This may well have implanted in the minds of the jury the impression that defendant's refusal to make a statement was so inconsistent with innocence as to amount to an admission of guilt. ( People v. Biancutti, 9 N.Y.2d 468, 472.)