In re Rafael D.

Appellate Division of the Supreme Court of New York

In re Rafael D.

41 A.D.2d 657, 340 N.Y.S.2d 650, 1973 N.Y. App. Div. LEXIS 5159

Appellate Division of the Supreme Court of the State of New York·Decided February 13, 1973·Published

Opinion

Appeal from an order of the Family Court, Kings County, dated June 27,1972, which placed appellant on probation, based upon an adjudication that he is a juvenile delinquent, made after a hearing. Order affirmed, without costs. ■ No opinion. Martuscello, Acting P. J., Latham, Shapiro and Brennan, JJ., concur; Christ, J., dissents and votes to reverse the order and to order a new hearing, with the following memorandum: Following a hearing, at which appellant did not testify, the Family Court held that he had committed an act which, if' committed by an adult, would constitute the crime of robbery. Just moments after the adjudication of guilt, the court, in remarks made to appellant’s attorney, implied that appellant had a duty to take the stand and assert his innocence. It cannot be said beyond a reasonable doubt that the hearing court did not base its finding of guilt, at least in part, upon the failure of appellant to testify. This constitutes reversible error, since a drawing of an adverse inference from an accused’s failure to testify is unconstitutional in that it deprives the accused of his Fifth Amendment right to remain silent (Griffin v. California, 380 U. S. 609; Chapman v. California, 386 U. S. 18).

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Appeal from an order of the Family Court, Kings County, dated June 27,1972, which placed appellant on probation, based upon an adjudication that he is a juvenile delinquent, made after a hearing. Order affirmed, without costs. ■ No opinion. Martuscello, Acting P. J., Latham, Shapiro and Brennan, JJ., concur; Christ, J., dissents and votes to reverse the order and to order a new hearing, with the following memorandum: Following a hearing, at which appellant did not testify, the Family Court held that he had committed an act which, if' committed by an adult, would constitute the crime of robbery. Just moments after the adjudication of guilt, the court, in remarks made to appellant’s attorney, implied that appellant had a duty to take the stand and assert his innocence. It cannot be said beyond a reasonable doubt that the hearing court did not base its finding of guilt, at least in part, upon the failure of appellant to testify. This constitutes reversible error, since a drawing of an adverse inference from an accused’s failure to testify is unconstitutional in that it deprives the accused of his Fifth Amendment right to remain silent (Griffin v. California, 380 U. S. 609; Chapman v. California, 386 U. S. 18).

In re Rafael D., 41 A.D.2d 657, 340 N.Y.S.2d 650, 1973 N.Y. App. Div. LEXIS 5159 (N.Y. Ct. App. 1973).

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Opinion

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