
    The People of the State of New York, Respondent, v. Richard Bianculli and Guiseppo D’Orio, Appellants.
    Argued March 27, 1961;
    decided April 27, 1961.
    
      
      Jeremiah F. Gross for Richard Bianeulli, appellant, and J oseph Aronstein for Guiseppo D ’Crio, appellant.
    I. The court erred in permitting the District Attorney to ask police officers what questions were put to each of the appellants when the District Attorney knew that neither of the appellants had made any confessions or admissions. (People v. Travato, 309 N. Y. 382.) II. The trial court committed serious error in the charge to the jury at the close of the trial, during the trial and in the denials of requests to charge. (People v. Craig, 2 A D 2d 804; People v. Bennett, 49 N. Y. 137; People v. Harris, 306 N. Y. 345; People v. Feldman, 299 N. Y. 153; People v. Taddio, 292 N. Y. 488; People v. Leyra, 1 N Y 2d 199.) III. The rulings and actions of the trial court deprived appellants of a fair trial. (People v. Cashin, 259 N. Y. 434; People v. Hines, 284 N. Y. 93; People v. Werblow, 123 Misc. 204; People v. Nisonoff, 293 N. Y. 597; People v. Hartnett, 124 Misc. 418; Langley v. Wadsworth, 99 N. Y. 61; People v. Severance, 67 Hun 182; Becker v. Koch, 104 N. Y. 394; People v. Keough, 276 N. Y. 141; People v. Elbroch, 250 App. Div. 583; People v. Stiglin, 238 App. Div. 407; People v. Wolf, 183 N. Y. 464; People v. Smith, 172 N. Y. 210; People v. Pierce, 218 App. Div. 254; People v. Wansker, 108 Misc. 84; People v. Mleczko, 298 N. Y. 153.) IV. The evidence adduced upon this trial failed to establish the guilt of either or both appellants of the crime of grand larceny, second degree, as charged in the indictment. V. The People failed to adduce evidence sufficient to establish the crime of petit larceny, as alleged in the indictment, beyond a reasonable doubt, as a matter of law. VI. The court erred in admission of the wire-tap conversations of October 3, 1957 and October 2, 1957. (People v. Defore, 242 N. Y. 13.) VII. The People’s Exhibits 14A and 16 were illegally and improperly received in evidence. (Frank v. Cossitt Cement Prods., 197 Misc. 670.) VIII. The trial court erred in the admission in evidence of scratch notes and good copy of Detectives Hawd and Lynch. IX. The court erred in admitting the wire-tap conversation of October 2, 1957 between Bianculli and an unknown person. (People v. Davis, 56 N. Y. 99; People v. Connolly, 253 N. Y. 330; People v. Marshall, 306 N. Y. 223.) X. The court erred in the admission in evidence of the latent fingerprint of appellant D ’Orio. XI. The court erred in sustaining objection to admission in evidence of appellant’s (D’Orio) jacket. (People v. Birch, 6 A D 2d 28.) XII. The court erred in admitting the testimony of Detective Bugeresta called by the People as an expert witness. (People v. Spillman, 309 N. Y. 295.)
    
      Frank S. Hogan, District Attorney (Peter B. Rosenblatt of counsel), for respondent.
    I. Defendants’ guilt was proved beyond a reasonable doubt. (People v. Pesky, 254 N. Y. 373; People v. McCarthy, 250 N. Y. 358; People v. Mechanic, 5 N Y 2d 991; People v. Repola, 280 App. Div. 735, 305 N .Y. 740; People v. Nowicki, 285 App. Div. 1114; People v. Nelson, 283 App. Div. 1116; People v. De Groat, 5 A D 2d 927, 8 A D 2d 664; People v. Goggin, 256 App. Div. 995; People v. Murphy, 256 App. Div. 995.) II. The court’s rulings on defendants’ right to remain silent after their arrest were proper. (People v. Pignataro, 263 N. Y. 229; People v. Lee, 4 A D 2d 770, 4 N Y 2d 843, 358 U. S. 845; People v. Mleczko, 298 N. Y. 153; People v. Namer, 309 N. Y. 458; People v. Travato, 309 N. Y. 382; People v. Abel, 298 N. Y. 333; United States v. Chiarella, 184 F. 2d 903; People v. Rutigliano, 261 N. Y. 103.) III. The admission of evidence derived from wire taps was proper. (People v. Feld, 305 N. Y. 322; Matter of Pogor v. Cannella, 3 Misc 2d 99; People v. Hudson Val. Constr. Co., 217 N. Y. 172; People v. Vario, 165 Misc. 842; People v. Pogor, 3 N Y 2d 836, 3 N Y 2d 941; People v. Gellard, 269 App. Div. 974, 296 N. Y. 516; Murphy v. Jack, 142 N. Y. 215; People v. Betts, 272 App. Div. 737; People v. Colon, 281 App. Div. 354; People v. Reynolds, 300 N. Y. 616; People v. O’Keefe, 280 App. Div. 546, 281 App. Div. 409.) IV. Other rulings of the trial court condemned by defendants did not deprive them of a fair trial. (People v. Taylor, 410 Ill. 469; People v. Mendes, 3 N Y 2d 120; People v. Perrin, 224 App. Div. 546, 251 N. Y. 509; People v. Ohanian, 245 N. Y. 227; People v. Knapper, 230 App. Div. 487; Zikos v. Zikos, 283 App. Div. 822.) V. The court’s charge and its refusal to charge certain requests of defense counsel were proper. (People v. Trimarchi, 231 N. Y. 263; People v. D’Anna, 243 App. Div. 259; People v. Harris, 136 N. Y. 423.)
   Dye, J.

The defendants have been convicted, after a jury trial, of grand larceny in the second degree, petit larceny, conspiracy and possession of burglar’s tools, committed in the course of a wholesale pilfering of dimes from public parking meters.

We have no hesitancy in saying that on this record the evidence is sufficient to sustain the defendants’ convictions. However, there must be a reversal and a new trial ordered for substantial error in the admission of evidence, not cured by either the rulings made at the time or the subsequent charge to the jury.

The proof establishes that on the evening of October 3, 1957, pursuant to certain wire-tap information, the arresting officers went to the vicinity of Third Avenue and 43rd Street, New York City, and there observed the defendants, who appeared to be tampering with parking meters. They kept them under surveillance and followed them to 56th Street, where they were seen to throw something into a trash basket. The defendants were then overtaken and arrested. At the time Bianculli had in his possession, among other things, 2,177 dimes and a key designed to open parking meters. A paper bag found in the trash basket at 56th Street contained 15 coin canisters; another coin canister was retrieved from a trash basket near 46th Street. On the trial, the People were allowed to show as part of their direct case that during the police interrogation, immediately after arrest, the defendants either had refused to answer a series of incriminating questions or had remained mute as well as having insisted upon consulting counsel. This showing was not confined to an isolated instance or an inadvertent improper question that under certain circumstances might well be overlooked as not affecting a substantial right of a defendant but, on the contrary, was part of a persistent and repeated course of conduct which may not be overlooked. The defendants’ numerous objections were overruled and their motions for a mistrial denied with variously worded rulings to the general effect that questions were not evidence and that whether or not anyone said anything under certain circumstances was something for the jury to consider.

Persistent and repeated introduction of evidence of this type, for whatever purpose, cannot help but have the effect of implanting in the minds of the jury the impression that defendants’ refusals to answer were so inconsistent with innocence as to amount to admissions of guilt.

This case falls squarely within our recent ruling in People v. Travato (309 N. Y. 382) wherein we reiterated the right of a defendant to remain silent when questioned as to matters which might be used against him (cf. People v. Rutigliano, 261 N. Y. 103).

Since there is to be a new trial, it is unnecessary to devote any time to other alleged errors except to say that the wire-tap order issued by the Court of General Sessions was not improper merely because the subject telephone was located outside of New York County (People v. Feld; 305 N. Y. 322). We also wish to point out that the theft of the canisters, a lesser offense, should be deemed merged in the greater offense, the theft of the dimes.

The judgments appealed from should be reversed and a new trial ordered.

Chief Judge Desmond and Judges Fuld, Froessbl, Van Voorhis, Burke and Foster concur.

Judgments reversed, etc.  