Opinion
April 11, 1988
Appeal from the Supreme Court, Queens County (Naro, J.).
Ordered that the judgment is reversed, on the law, and a new trial is ordered. No questions of fact have been raised or considered.
On cross-examination of the defendant the prosecutor asked the defendant about his failure to come forward with an exculpatory version of the events at the time he was arrested. Such questioning was improper and highly prejudicial (see, People v. Conyers, 52 N.Y.2d 454, 459; People v. Copeland, 127 A.D.2d 846). During the colloquy following defense counsel's objection to the inquiry, the Trial Judge failed to recognize the impropriety of the inquiry despite counsel's invocation of the defendant's right to remain silent. After overruling the objection, the Trial Judge, himself, asked the defendant whether he had told his version of the events to the police at the time he was arrested. The Trial Judge's inquiry indicated that he believed the defendant's postarrest silence could cast doubt on his credibility (Hawkins v. LeFevre, 758 F.2d 866, 875, 878). As the evidence of the defendant's guilt was not overwhelming, the improper inquiry had the effect of depriving the defendant of a fair trial (see, People v. Livingston, 128 A.D.2d 645).
We have considered the defendant's additional contention that the prosecutor improperly cross-examined the defendant regarding his alibi witnesses and find it to be without merit (see, People v. Gonzalez, 68 N.Y.2d 424; People v. Morales, 126 A.D.2d 575). Lawrence, J.P., Eiber, Harwood and Balletta, JJ., concur.