People v. Delesline

68 A.D.2d 815, 414 N.Y.S.2d 138, 1979 N.Y. App. Div. LEXIS 11007

Opinion

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 AD2d 123, 127, revd on other grounds 39 NY2d 364; People v Bell, 45 AD2d 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 US 610.) The error cannot be considered, in the circumstances of this case, harmless beyond a reasonable doubt as required by Chapman v California (386 US 18). Concur—Murphy, P. J., Kupferman, Birns, Evans and Lupiano, JJ.