Opinion
January 31, 1991
Appeal from the Supreme Court, New York County (Edward McLaughlin, J.).
On April 5, 1988, appellant was indicted, together with Alberto Castro-Restrepo and Michael Fillion, for narcotics offenses occurring on March 23 and March 24, 1988. In the previously decided appeal of codefendant Castro-Restrepo ( 169 A.D.2d 454) we reversed the judgment and remanded for a new trial because of the misjoinder of the one charge against Castro-Restrepo with charges involving solely appellant. In making this determination, we rejected Castro-Restrepo's claim that a severance should have been granted on the basis of antagonistic defenses, since each defendant's claim of ignorance as to the contents of the cocaine-laden bags was not in irreconcilable conflict with the other's. (See, People v Mahboubian, 74 N.Y.2d 174, 184.)
Prior to trial, codefendant Fillion pleaded guilty to criminal possession of a controlled substance in the second degree and was sentenced on November 10, 1988 to 8 1/3 years to life. His judgment of conviction was affirmed by this court on April 19, 1990 ( 160 A.D.2d 538) and on August 30, 1990, leave to appeal to the Court of Appeals was denied.
This ruling is equally applicable here. Our examination of the record, however, leads us to conclude that appellant, who took the stand in his own behalf, was unduly prejudiced by the cross-examination conducted by counsel for codefendant Castro-Restrepo. Although codefendant had the right to question defendant as vigorously as he would any other witness (see, People v Owens, 22 N.Y.2d 93, 97; People v Carter, 86 A.D.2d 451, 457), his inquiries regarding appellant's postarrest silence unfairly penalized appellant for exercising his privilege against self-incrimination. (People v Conyers, 49 N.Y.2d 174; cf., People v Dawson, 50 N.Y.2d 311 [a defense witness's prior silence may be used to impeach his trial testimony].) That it was cocounsel and not the prosecutor who engaged in this line of inquiry did not mitigate its prejudicial effect. (De Luna v United States, 308 F.2d 140, reh denied 324 F.2d 375.)
Appellant's due process rights were similarly violated by cocounsel's repeated suggestion that he had the burden of proving his innocence by obtaining evidence and producing witnesses to substantiate his testimony. (People v Faison, 126 A.D.2d 739; see, People v Nunez, 74 A.D.2d 805, 806.)
For these reasons, we reverse the judgment of conviction and remand the matter for a new and separate trial.
Concur — Murphy, P.J., Sullivan, Carro, Kassal and Wallach, JJ.