People v. Petersen — 4 N.Y.2d 992

Majority

p. 992

The People of the State of New York, Respondent, v. George John Petersen, Appellant.

Argued April 29, 1958;

decided June 25, 1958.

p. 993

Joseph P. Fallon for appellant.

Frank A. Gulotta, District Attorney (Henry P. De Vine of counsel), for respondent.

Prejudicial error was committed by the trial court in allowing the prosecution to exploit the fact that defendant had not told the police, the Judge, the District Attorney and the Grand Jury that he was not driving his car at the time he was so charged, but that it had been driven by someone else. Defendant was under no duty to speak when in the custody of the authorities, and his failure to do so cannot be the basis of an inference of guilt on his part (People v. Rutigliano, 261 N. Y. 103 , 106-107; People v. Dolce, 261 N. Y. 108 ; People v. Travato, 309 N. Y. 382 , 386; People v. Namer, 309 N. Y. 458 , 464; People v. Hyman, 308 N. Y. 794 ; People v. Allen, 300 N. Y. 222 , 225; People v. Abel, 298 N. Y. 333 ; People v. Mleczko, 298 N. Y. 153 ; People v. Pignataro, 263 N. Y. 229 ).

p. 994

The, further references to this subject in the prosecutor’s summation aggravated the error, which error was not cured by the instruction of the trial court properly stating the applicable law.

Chief Judge Conway and Judges Desmond, Dye, Fuld, Fkoessel, Van Voorhis and Burke concur.

Judgment reversed and a new trial ordered.

Cases cited

People v. Rutigliano 261 N. Y. 103 N.Y. 1933-02-28 at 106-107 p. 993
People v. Dolce 261 N. Y. 108 N.Y. 1933-02-28 p. 993
People v. Travato 309 N. Y. 382 N.Y. 1955-12-28 at 386 p. 993
People v. Namer 309 N. Y. 458 N.Y. 1956-01-12 at 464 p. 993
People v. Hyman 308 N. Y. 794 N.Y. 1955-02-28 p. 993
People v. Allen 300 N. Y. 222 N.Y. 1949-12-29 at 225 p. 993
People v. Abel 298 N. Y. 333 N.Y. 1949-01-13 p. 993
People v. Mleczko 298 N. Y. 153 N.Y. 1948-07-16 p. 993
People v. Pignataro 263 N. Y. 229 N.Y. 1934-01-09 p. 993