People v. Delesline , 414 N.Y.S.2d 138 ( 1979 )

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.