Opinion
Argued May 27, 1987
Decided July 9, 1987
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, Joseph Harris, J.
Peter Henner for appellant.
Sol Greenberg, District Attorney (Paul A. Clyne of counsel), for respondent.
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 N.Y.2d 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.