People v. Roberts

512 N.E.2d 311, 70 N.Y.2d 682, 518 N.Y.S.2d 790, 1987 N.Y. LEXIS 17329

• Court: New York Court of Appeals
• Decided: July 9, 1987
• Status: Published

Opinion

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and a new trial ordered.

The People concede that the trial court erred in permitting the prosecutor to question Edgington repeatedly concerning the identity of his accomplice after the witness had indicated his refusal to answer such questions. The People claim, however, that the error was harmless.

Under the circumstances of this case Edgington’s refusal to answer the prosecutor’s questions could only have led the jury to conclude that the defendant was the accomplice (People v Pollock, 21 NY2d 206). Thus Edgington’s silence served to identify the defendant but denied him his right of confrontation on the primary factual issue at the trial. This error cannot be said to be harmless particularly in light of the number of times the prosecutor asked Edgington for the accomplice’s name in the presence of the jury.

We have considered the defendant’s other contentions but have found that they lack merit.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur in memorandum.

Order reversed, etc.