Opinion
March 8, 1979
Judgment, Supreme Court, Bronx County, rendered November 26, 1975, convicting defendant of the crime of possession of a weapon as a felony is unanimously reversed, on the law, and the case is remanded for a new trial. The charge, as established after a reconstruction hearing, included the improper reference to the jurors' "`hearts and conscience'" in assessing defendant's guilt. (People v. Johnson, 46 A.D.2d 123, 127, revd on other grounds 39 N.Y.2d 364; People v. Bell, 45 A.D.2d 362.) But more important, it was error of constitutional dimension to permit cross-examination of defendant exposing his failure to express, on various postarrest occasions, his defense that he had been framed or "flaked". (Doyle v. Ohio, 426 U.S. 610.) The error cannot be considered, in the circumstances of this case, harmless beyond a reasonable doubt as required by Chapman v. California ( 386 U.S. 18).
Concur — Murphy, P.J., Kupferman, Birns, Evans and Lupiano, JJ.