Appellate Division of the Supreme Court of New York, Second DepartmentOct 23, 1978
65 A.D.2d 608 (N.Y. App. Div. 1978)

October 23, 1978

Appeal by defendant from a judgment of the County Court, Nassau County, rendered October 27, 1975, convicting him of two counts of criminal sale of a controlled substance in the third degree, upon a jury verdict, and imposing sentence. Judgment reversed, on the law, and new trial ordered. At trial the defendant took the stand and for the first time raised the affirmative defense of entrapment. The record indicates that, if believed, the defendant's testimony established the requisite elements of entrapment. On cross-examination, the prosecution inquired as to why the defendant had not previously told his story to the police. This type of inquiry into a defendant's postarrest silence is a serious violation of the defendant's due process rights and constitutes reversible error (see Doyle v Ohio, 426 U.S. 610). Martuscello, J.P., Latham, Damiani and Titone, JJ., concur.