The assertion that assault should have been submitted as a lesser included offense of intentional murder is equally without merit. The rejection by the jury of the crimes of manslaughter in the first and second degree, which require culpable mental states essentially the same as that relevant for the crime of assault, coupled with the verdict on intentional murder, necessarily indicated that the jury had wholly discredited the defense theory that Berzups had acted without an intent to kill (see People v Finney, 33 N.Y.2d 536, 537). Having considered the other contentions raised by the appellant, we find them equally unpersuasive.
We hold, however, that the court committed reversible error in permitting the People to present testimony in their direct case that upon his arrest defendant remained silent and gave no explanation of his conduct. "A person in police custody is under no obligation to speak and no damaging inference may be drawn from his silence" (People v Finney, 39 A.D.2d 749, affd 33 N.Y.2d 536). Defendant's failure to offer an exculpatory explanation or "to lay out an alibi" at the time of his arrest may not be considered by the jury in determining his guilt or innocence (People v Christman, 23 N.Y.2d 429, 433; People v Muniz, 40 A.D.2d 985; see Doyle v Ohio, 426 U.S. 610, decided June 17, 1976), and it is error to introduce evidence to show that the defendant did not make a statement to the police (People v Orgovan, 14 A.D.2d 482).
In his summation, the prosecutor also alluded to the fact that, at the time of his arrest, defendant never informed the police about the "frame-up" and his alibi. In our opinion, the trial court clearly erred in permitting the prosecutor to elicit such testimony (see People v Finney, 39 A.D.2d 749, affd 33 N.Y.2d 536; People v Felcone, 43 A.D.2d 976; People v Jones, 47 A.D.2d 761), and then compounded the error by allowing the prosecutor to comment thereon in his summation (cf. People v Cwikla, 45 A.D.2d 584).