
    The People of the State of New York, Respondent, v. Philip Rahming, Appellant.
    Argued March 4, 1970;
    decided May 13, 1970.
    
      
      Max Wild and Milton Adder for appellant.
    I. The trial court committed reversible error in allowing complainant to identify appellant at trial without first requiring the prosecution to establish that her testimony was untainted by her prior participation in an illegal, highly suggestive and unnecessary showup. II. The showup was an unconstitutional and unreliable farce. (United States v. Wade, 388 U. S. 218; Gilbert v. California, 388 U. S. 263; Stovall v. Denno, 388 U. S. 293; People v. Ballott, 20 N Y 2d 600.) III. The Trial Judge’s erroneous placement of the burden of proof aggravated by his arbitrary limitation of inquiry, resulted in an erroneous denial of appellant’s identity motion. (People v. Ballott, 20 N Y 2d 600; People v. Hill, 22 N Y 2d 686; Simmons v. United States, 390 U. S. 377.) IV. The evidence negates the existence of an untainted basis for the identification. V. The improper admission of complainant’s in-court identification was highly prejudicial. VI. The trial court committed reversible error by allowing a police officer to testify with respect to statements made by appellant in a custodial interrogation where the prosecution failed to show that appellant had been warned of or waived his constitutional rights to counsel and silence. (Miranda v. Arizona, 384 U. S. 436; People v. Travato, 309 N. Y. 382; People v. Christman, 23 N Y 2d 429.) VII. Impeachment through illegally obtained statements was prejudicial error. (People v. Harris, 25 N Y 2d 175; People v. Miles, 23 N Y 2d 527; People v. Kulis, 18 N Y 2d 318; Walder v. United States, 347 U. S. 62.) VIII. The prosecution improperly used the detective in rebuttal. IX. The court committed reversible error by permitting lengthy and detailed cross-examination of appellant as to the facts underlying a prior youth offender adjudication and with respect to a crime for which he was then under indictment. (People v. McCarthy, 283 App. Div. 876, 308 N. Y. 302; People v. Rhem, 52 Misc 2d 853; People v. Malkin, 250 N. Y. 185; People v. Di Biasi, 7 N Y 2d 544; People v. Alamo, 23 N Y 2d 630; Bruton v. United States, 391 U. S. 123; People v. Sorge, 301 N. Y. 198.)
    
      Burton B. Roberts, District Attorney (Arnold Kideckel of counsel), for respondent.
    I. Defendant’s guilt was established beyond a reasonable doubt. (People v. Seppi, 221 N. Y. 62; People v. Coffey, 11 N Y 2d 142; People v. Bale, 10 N Y 2d 895; People v. Weiss, 7 N Y 2d 139; People v. Dorner, 25 A D 2d 552, 18 N Y 2d 905; People v. White, 2 N Y 2d 220; People v. Atlas, 183 App. Div. 595, 230 N. Y. 629.) II. The complainant was properly allowed to testify to her in-court identification of defendant. (People v. Logan, 25 N Y 2d 184; United States v. Wade, 388 U. S. 218; Gilbert v. California, 388 U. S. 263; People v. Stockford, 24 N Y 2d 146; Stovall v. Denno, 388 U. S. 293; Foster v. United States, 394 U. S. 440; Simmons v. United States, 390 U. S. 377; People v. Moore, 23 N Y 2d 816; People v. Lynch, 23 N Y 2d 262; People v. Rivera, 22 N Y 2d 453.) III. Statements taken allegedly in violation of Miranda can be used to impeach defendant’s credibility albeit no 813-f notice was served. (People v. Harris, 25 N Y 2d 175, 31 A D 2d 828; People v. Kulis, 18 N Y 2d 318; People v. Hudson, 26 N Y 2d 781; Walder v. United States, 347 U. S. 62; People v. Miles, 23 N Y 2d 527; People v. Rutigliano, 261 N. Y. 103; People v. Christman, 23 N Y 2d 429; People v. Travato, 309 N. Y. 382.) IV. The cross-examination of defendant was proper. (People v. Sorge, 301 N. Y. 198; People v. Webster, 139 N. Y. 73; People v. Schwartzman, 24 N Y 2d 241; People v. Alamo, 23 N Y 2d 630; People v. Zackowitz, 254 N. Y. 192; People v. Geller, 27 A D 2d 843; People v. Hurst, 13 A D 2d 821, 10 N Y 2d 939; People v. Marrero, 28 A D 2d 1208; People v. De Renzzio, 19 N Y 2d 45; People v. Santiago, 15 N Y 2d 640.)
   Breitel, J.

On defendant’s appeal from a conviction for robbery two issues have been raised requiring a new trial and a new preliminary identification hearing. The first relates to improper cross-examination of defendant by the prosecutor to elicit and then contradict on rebuttal by extrinsic proof matter excludable because obtained in violation of the rules laid down in Miranda v. Arizona (384 U. S. 436). The second relates to a suggestive lineup identification of defendant casting doubt upon the victim’s in-court identification.

On July 7, 1967 at 9:30 a.m., Mrs. Mattie Wright was asleep in her apartment. Awakened by a noise, she saw a man, whom she identified at trial as the defendant, enter through the window. When she screamed he jumped on the bed and “ grabbed my throat and mouth.” He said, “ Lady, all I want is your money”. Mrs. Wright’s dog started barking and the intruder released her to quiet the dog. She struck the dog and then tried to escape, but was thwarted by the man who “ grabbed me, slugged me to the floor kneed—knees in my chest” and stated: “Now, lady, I have to kill you. You’re making too much noise.” She then blacked out. When she regained consciousness, he dragged her back to the bed, took $20 from her pocketbook, and then left the apartment through the window.

The intruder was in the apartment from 30 to 45 minutes. Mrs. Wright testified that during this time he wore “black socks on his hands ”.

Two days later, on July 9, at 9:30 p.m., Detective Dunscomb telephoned Mrs. Wright to come to the police station to look at photographs. She was given a box of approximately 60 or 70 photographs of parolees and known criminals to examine. During the ensuing 15 minutes Detective Dunscomb was ‘ ‘ doing something else ”. She then identified a New York City parolee photograph of defendant.

Detective Dunscomb arrested defendant and brought him to the police station at 2:30 a.m. on July 10. When searched, a pair of black socks were discovered in his pocket.

Mrs. Wright, who had earlier been told that the police “ might pick up somebody that night ”, was awakened by telephone and asked to come to the station house. On her arrival, at about 3:00 a.m., she went directly to the squad room where Detective Dunscomb told her he ‘ ‘ would bring out the man that she had picked out in the photograph.” Defendant alone was brought out and Mrs. Wright stated: “"That’s him. I’d know him anywhere.”

Prior to trial, defendant, inter alia, moved to suppress “ all evidence of identification.” At the hearing held on this motion, the burden of proof was improperly placed on defendant. Defendant, called as the first witness, testified concerning the showup, followed by Detective Dunscomb. At the eonclusrt* of the detective’s testimony, defendant’s attorney suggested an adjournment, but the prosecutor wished to call Mrs. Wright as a witness. The court observed that it was late and told the prosecutor to “ keep her for tomorrow morning.”

On the following day, the prosecutor did not call Mrs. Wright. When defendant requested her presence contending that ‘ ‘ to have an adequate, a complete hearing, we must have the testimony ” of Mrs. Wright, the court indicated it would allow her to be called by the defense. Defendant then moved to reopen and call Mrs. Wright. The court, however, sustained an objection and ruled that the defendant could only call her as a rebuttal witness. To this ruling the defendant objected stating “ I fail to see what questions I could ask her, under your ruling.” He did not call her as a witness.

In denying defendant’s motion to suppress the identification, the court stated: ‘ ‘ I think that the identification by this witness of this defendant, aside from the picture, aside from any lineup, might be sufficient for the trial of this action.”

It was error for the court on. the identification suppression hearing to hold that the in-court identification would be “ sufficient ’ ’ without first requiring the prosecution to establish by “ clear and convincing evidence ’’that it was neither the product of, nor affected by, the improper pretrial showup (People v. Logan, 25 N Y 2d 184, 191; People v. Ballott, 20 N Y 2d 600, 606-607).

The showup, conducted three days after the commission of the crime and absent a showing of compelling circumstances, was “ so unnecessarily suggestive and conducive to an erroneous identification that it violated due process of law ” (People v. Logan, supra, at p. 191). True, the witness, Mrs. Wright, had selected defendant’s photograph previously. This selection was not shown to be impermissibly suggestive since she had almost 70 photographs to examine and was left alone during her examination. It should be observed, however, that the collection of almost 70 photographs had not been produced or made available for inspection, nor was its production requested, but only the picture identified. Overall, there was no substantial likelihood of an irreparable misidentification in the photograph selection process (Simmons v. United States, 390 U. S. 377, 384).

After selection of the photograph, however, she was informed that the police might pick up someone that evening. Early the next morning she was awakened and asked to come to the station house. On arrival, Mrs. Wright was told that she would see the man whose photograph she had earlier selected. Defendant was exhibited, alone, to Mrs. Wright. By this time her identification of defendant was, prima facie, rendered, without more, vulnerable to suggestion. Notably, the showup identification was not the result of assiduous police work requiring prompt identification on the scene, or shortly following the commission of the crime, police practice sanctioned in People v. Logan (supra).

Because the showup violated due process' there must be a preliminary inquiry, as indeed the identification hearing court recognized with respect to the out-of-court identifications, to determine the independent value, and, therefore, the admissibility of Mrs. Wright’s in-court identification. Unfortunately, the preliminary hearing was not properly utilized, because of the misplacement of the burden of proof and the omission from the People’s case of Mrs. Wright’s testimony. The last omission made it impossible for the hearing court to determine whether an in-court identification would have independent value.

The failure of defendant to object to the in-court identification is hardly a waiver, since he had made an appropriate pretrial motion to suppress. This motion preserves the objection, since no purpose would be served by renewing it on the trial, in contrast to the situation with respect to motions to .suppress confessions for involuntariness, where an objection is necessary to preserve the issue of admissibility for the jury’s consideration. (People v. Cefaro, 23 N Y 2d 283, 285-288; see, also, People v. Matthews, 25 N Y 2d 870.) Moreover, the burden of proof, once it has been established that there is a suggestive showup, is not on the defendant, but rather it is the People who must establish by 1 ‘ clear and convincing evidence ’ ’ that the in-court identification has not been tainted (People v. Ballott, supra, at pp. 606-607).

Since it is determined that the showup was unfair because too suggestive and that a hearing is required to determine the disqualifying effect, if any, on the in-court identification, it is immaterial whether counsel should have been present at the pre-arraignment identification (see United States v. Wade, 388 U. S. 218, and Gilbert v. California, 388 U. S. 263).

The second issue involves a different kind of error requiring that there be a new trial. Most important, it does not involve the finding of the black socks on defendant or the evidence received as to the finding of the socks, since they were discovered on a .search incident to a lawful arrest. The error arises in receiving testimony as to what defendant .said in the station house about the socks.

The defense was alibi, namely, that at the time of the crime defendant was home in bed. Defendant took the stand and confined his short direct examination to a denial of guilt and the alibi There was no testimony concerning .his interrogation at the police station or the socks that were taken from him. On cross-examination, however, defendant was asked about and denied ownership of the socks or that the socks were in his pocket on his arrest. He further testified, still on cross-examination, that when questioned following his arrest he had, in effect, denied ownership of the socks.

Detective Dunscomb was recalled by the People as a rebuttal witness. Over objection that there was no advance notice that statements by defendant would be offered ('Code Crim. Pro., § 813-f) and that there was no proof that defendant had been warned under the rules mandated in Miranda v. Arizona, (supra), he testified that the defendant had admitted having the socks and couldn’t give me a reason why he had them.” He also testified that the defendant did not deny possession of the socks.

Statements by a defendant, not admissible on the People’s direct case, are nevertheless admissible to impeach defendant’s credibility as a witness (People v. Kulis, 18 N Y 2d 318, 322-323). Such statements may be used, however, only when the defendant “ opens the door ” by testifying to the matter on his direct examination (People v. Harris, 25 N Y 2d 175, 177; People v. Miles, 23 N Y 2d 527, 542-545; see, also, People v. Wellington, 26 N Y 2d 891). When the otherwise inadmissible statements are used for impeachment purposes, advance notice pursuant to section 813-f of the Code of Criminal Procedure need not be given (People v. Harris, supra, at p. 177).

But, as noted above, defendant did not testify on direct examination to any of the events in the police station. He confined his testimony to a bare denial of guilt and his alibi. There was no testimony on his direct examination which permitted cross-examination as to the details of the station house events (cf. People v. Wellington, supra). Thus, it was error for the prosecutor on cross-examination to have ranged beyond the defendant’s direct examination in order to lay a foundation for the tainted evidence on rebuttal ” (People v. Miles, supra, at p. 543).

Moreover, the error in allowing the impeachment evidence cannot be considered to be harmless as it was in People v. Miles (supra), even assuming that inculpatory matters related to the ultimate issues are not absolutely precluded (see Tate v. United States, 283 F. 2d 377, 380). In the Miles ease the proof establishing defendant’s guilt was “ overwhelming ” and since the error was confined to an incidental part of the case, it was held to be harmless. Here, however, the improperly admitted statement, although limited to impeachment, related to a crucial element of the case. It was intimately tied to the method of the commission of the crime and thus related to defendant’s identification — a critical issue.

Hence, for this reason, there must be a new trial.

Since there must be a new trial, it is observed that the errors alleged as to cross-examination of defendant about prior misconduct are non-existent. Cross-examination relating to acts underlying a youthful offender adjudication is permissible, so long as the fact of adjudication is not elicited (People v. Vidal, 26 N Y 2d 249). A witness may also be cross-examined concerning a criminal act, although he may never have been indicted or convicted for the act (People v. Sorge, 301 N. Y. 198, 201; 65 N. Y. Jur., Witnesses, § 76). Of course, a witness may not be asked whether he has been indicted (People v. Morrison, 194 N. Y. 175,, 178). But, in reason, the mere fact of indictment should not proscribe inquiry into the underlying criminal act (see Richardson, Evidence [9th ed.], § 518, p. 528; cf. People v. Sorge, supra).

Accordingly, the judgment of conviction should be reversed and a new trial ordered, to be preceded by a new preliminary identification hearing.

Bergan, J. (dissenting).

The effect of the identification in a police station of an accused by a victim of a robbery without a differential lineup is to be determined as a question of due process.

The issue is basically concerned with the reliability of the victim’s identification of the accused at trial. Chief Judge Fuld laid the rule down in People v. Ballott (20 N Y 2d 600). The question is whether the “ pretrial identification procedure ” has been “ so unfair as to amount to a denial of due process of law” (pp. 605, 606).

Judge Breitel put it with slightly different emphasis in People v. Logan (25 N Y 2d 184, 191) to say that the question is whether the pretrial identification is “so unnecessarily suggestive ’ ’ and whether it is so “ conducive to an erroneous identification ” as to rise to the level of a deprivation of due process.

Not by any of these criteria, or by those laid down by the Supreme Court (e.g., Simmons v. United States, 390 U. S. 377), should the court hold in this case that the identification without a lineup of defendant by the victim amounted to deprivation of due process; or that the police station identification had any real effect on the reliability of her testimony against defendant on the trial.

Identification without a lineup can be both unfair and suggestive ; but it also may have no prompting effect whatever on the witnesses ’ trial identification. It ought not be taken in isolation. Whether it is unfair or not in the sense it plays a significant role in the trial testimony of the witness depends on occurrences before the identification which may throw light on whether there has been an ‘1 erroneous identification ’ ’ (People v. Logan, supra), or whether the ability of the witness to identify defendant on the trial had an “ independent source ” (Gilbert v. California, 388 U. S. 263, 272).

An ‘ ‘ independent source ’ ’ can mean nothing other than that the witness is able to make the identification at the trial, drawing on his own memory, not affected by the promptings or suggestions of what he saw at the police showup.

If it can in fairness be seen that the witness is able to make a reliable identification without dependence on what was seen at the police station, the fact there has been a showup ought not automatically lead the court to reverse for an absence of due process.

The record in this present case strongly suggests the independent reliability ,of the victim’s trial identification of defendant. Her testimony of identification on the trial was positive and unequivocal. It withstood an exhaustive cross-examination.

The defendant was in the presence of the victim at the time of the crime for about a half hour. During a substantial part of this time and especially when he was attacking the victim his face was completely uncovered. She observed him closely and described him accurately in her original report to the police.

Her complaint stated he had hair of a peculiar color and style; that he had a cut or burn on his arm; that his hands were covered by black socks. When she went to the police station before defendant’s arrest the police gave her “ a bin of random cards ” containing photographs of persons with criminal records, some 60 to 70 in number, and the police testified: “ She pulled the picture out and identified him. She said, ‘ That’s the man. ’ ’ ’

It was on the basis of this particularization of identification that defendant was arrested. Police observations of defendant when apprehended jibed exactly with what the complainant had .told them before she looked at the pictures. Defendant did indeed have a cut or burn on his arm; he had the kind of hair the witness had described; and, what is highly suggestive of accuracy of identification, he had a pair of black socks in his pocket.

The victim could scarcely have invented the wearing of socks on the hands — a bizarre circumstance—nor would the police have been likely-to suppose defendant would be carrying the socks around in his pocket, an almost equally bizarre circumstance.

Seen in the context of events which preceded it, the lineup identification does not itself open victim’s identification to any reasonable doubt. It is not greatly different from the situation which would obtain if a victim gave police very precise descriptive information about an accused, then saw him on the street, called the police who shortly captured him, and then identified the offender after arrest. Not to permit that victim to testify because such a showup 1 ‘ tainted ’ ’ the reliability of his identification would adversely affect a substantial measure of routine police inquiry and identification. The present case should be governed by the same principle.

It is not difficult to demonstrate that the cases both in the Supreme Court and in this court which have treated showup identifications as a deprivation of due process on the basis of essential unfairness do not have, and should not have, application to this present case.

An illustration of the kind of suggestive identification which has been deemed unfair and hence a constitutional deprivation is Foster v. California (394 U. S. 440). There the defendant, a tall man, was placed in a lineup with two short men. The victim could not positively identify defendant. He asked to speak to defendant and was allowed to do so alone with only prosecuting officers present.

The victim was still uncertain. Some days later there was a second lineup in which there were five men, but defendant was the only one who had been in the first lineup. The witness was then “convinced ” defendant was the right man (pp. 441, 442).

The decisive factor in Foster was the conclusion that the court was able to make that the “ suggestive elements ” in the identification procedure “ made it all but inevitable ” that the victim ‘ ‘ would identify petitioner whether or not he was in fact ‘ the man ’ ” (per Fobtas, J., p. 443). The opinion concluded: “ This procedure so undermined the reliability of the eyewitness identification as to violate due process.” Such conclusions could not be reached on the present record.

In United States v. Wade (388 U. S. 218), involving a lineup, not a showup, the question was whether, after the criminal action had been commenced by indictment and counsel had appeared, the lineup deprived the accused of assistance of counsel; and a hearing was directed to determine whether, in view of this constitutional deprivation, the trial identification was based on “observations” of accused “ other than” the lineup identification.

The case is irrelevant here unless one assumes that the present procedures were so unfair as to amount to constitutional deprivation of a different kind. The decision in Gilbert v. California (388 U. S. 263, supra) turned essentially on the same issue, “ a lineup conducted without notice to his counsel ” (p. 269).

■ When we turn to Simmons v. United States (390 U. S. 377, supra), where the conviction of Simmons was upheld against an argument that the examination of photographs by witnesses was essentially unfair and tainted their in-court identification, we find a case somewhat closer in principle to the present case than those which have been examined.

Six group photographs were shown to the witnesses in a bank holdup. 'Simmons and one other robber (Andrews) appeared several times in the series. All five eyewitnesses identified Simmons from the photographs; none identified Andrews. As a matter of sheer suggestiveness, this kind of identification by photographs limited both in number and subject especially as to Simmons was certainly more “tainted” than that in this present case when the record is seen in totality.

Nevertheless Justice Hablan, writing for the court, concluded, and this was decisive: ‘ ‘ These initial identifications were confirmed by all five witnesses in subsequent viewings of photographs and at trial, where each witness identified Simmons in person. Notwithstanding cross-examination, none of the witnesses displayed any doubt about their respective identifications of Simmons. Taken together, these circumstances leave little room for doubt that the identification of Simmons was correct, even though the identification procedure employed may have in some respects fallen short of the ideal ” (pp. 385-386).

Nor is this present case governed by People v. Ballott (20 N Y 2d 600, supra) in which there was an initial and obviously suggestive meeting of the witness with defendant in the police station. The witness identified him only after at her request he had donned a hat and heavy coat similar to that worn by the robber, and again at her request had uttered the words “give me the money, give me the envelope” (p. 603). She made her identification only after she heard him speak.

It is worth noting, too, that the procedure sustained in People v. Brown (20 N Y 2d 238) where, without prior identification of defendant by photographs or otherwise, the complainant was allowed to view him with only the codefendant, also a negro, and a white detective, through a small window in another room, was held harmless error.

There is in the present record no such initial demonstration of impairment of constitutionally protected due process rights as to require a pretrial evaluation by the Judge, or an on-trial evaluation by him without the jury, of the reliability of the complainant’s testimony. Thus the Judge’s view, right or wrong, that defendant had the burden on the question is quite immaterial.

Indeed, the new inquiry now proposed by the court “ to determine the independent value, and, therefore, the admissibility of” the complainant’s trial identification seems a peculiarly sterile exercise.

The complainant at the trial was subjected to a cross-examination in which her memory and the independence of her identification were thoroughly canvassed. It is not possible to foresee on what reasonable basis this Trial Judge, or any Judge, would exclude her testimony against defendant because of the possible influence of her identification of defendant in the police station.

If the Trial Judge takes the direction of this court literally to determine the ‘ ‘ independent value ’ ’ of the identification, he will address himself to the operations of Mrs. Wright’s mind to see if she really remembered defendant, as she said she did, from her recall of the harrowing experience of the crime itself.

If she says again that she can remember the crime and identifies defendant, as she undoubtedly will, any alternative open to the Judge than to admit her testimony is not reasonably foreseeable.

An informed judicial choice on this inquiry must rest on objective occurrences in the record, e.g., the consistency of the original complaint and description with other facts; and those objective occurrences are as now fully developed as they are likely to be on a rehearing before the Judge.

If one leaves aside objective events and tries to probe' directly into the mental processes of witnesses, the field of inquiry becomes extremely tricky and uncertain. Judges are not accustomed to determining the internal effects on mind and memory of witnesses of one experience laid over another. We accept truth or falsity in bulk and largely leave the conclusions to juries.

To make a really informed judgment as to whether what Mrs. Wright saw in the police station had, or did not have, an effect on her earlier memory is a matter of marked delicacy and difficulty and probably not reliably determinable by what she .says about her own ability. Complicating such an inquiry in this case is her earlier identification of the photograph.

If objective facts so strongly show an undue influence in the showup that the Judge can say from normal human experience the identification lost independent value, a subject open to normal judicial determination may be present.

But the ability to say this confidently from objective facts would arise in an extremely rare case, such as Foster v. California (394 U. S. 440, supra). Even there the case went back to California to determine if the procedure was harmless error. This, of course, is a question determinable according to well-understood rules.

But the remission to be ordered in the present case to determine the independent value of what a witness .says is quite a different kind -of inquiry. There is no suggestion of new facts relating either to crime or identification to be developed and essentially what the hearing judge must address himself to is the internal memory processes and the mental discipline of differentiation of Mrs. Wright—unlikely subjects.

It would be .remarkable if any Judge of this court, put to decision, would exclude Mrs. Wright’s testimony of the crime committed in this case on anything shown in this record or that will be shown on remand.

This kind of collated probing into reliability of witnesses may be required in extreme cases of police-suggested testimony, but it should not be .routinely directed merely because there is a showup. A growing amount of judicial time and court manpower, limited in availability, is devoted to side inquiry at a time when the prompt trial of the criminal charges themselves is impaired.

The widespread Huntley hearings of purported coerced confessions, while not notably productive, at least have the virtue of normal adversary inquiry into controverted objective facts. But nothing productive or useful can possibly emerge from the hearing now ordered by the court in this case.

Nor does the alternative ground of error considered by the court suggest reversal. Defendant took the stand and testified. He flatly denied the crime. He was not asked on his direct examination whether he had socks in his pocket when arrested or concerning his interrogation in the police station when the socks were found in his pocket.

But in this case the possession of socks had a direct relevancy to the crime itself and it was proper to cross-examine him as to the fact even if he remained aloof from it on direct examination. If a man with a green hat commits an assault, it seems proper to show on cross-examination that defendant when arrested wore a green hat; or in the case of a stolen watch had a watch in his possession similar to the stolen one.

The fact he chose not to refer to the subject while testifying to a denial of guilt ought not cut off cross-examination addressed to a fact directly bearing on the crime because at the pertinent time defendant is under arrest. Nothing in People v. Wellington (26 N Y 2d 891, decided April 8, 1970) precludes this kind of inquiry.

But if it be assumed that the testimony of the police officer as to what defendant said when the socks were found in possession should not have been received, the error was harmless. The policeman testified he asked defendant why he had the socks. ‘1 [H]e told me that he just had them. He couldn’t give me a reason why he had them.”

But defendant’s cross-examination on the socks found on him when arrested, which, as it has been noted, was a proper subject of cross-examination directly related to the crime, took a strange and inconsistent pattern. Although he denied having the socks and denied a conversation with the police about them, at one point he testified “ I did not see those socks till the police station ”. At another he testified enigmatically I was speaking about the socks. I’m not denying that, that we .spoke about it and, elsewhere, “ I really didn’t think anything of—of a pair of socks

Moreover, defendant’s mother, called as a witness, testified on cross-examination in response to a proper question that her son carried socks in his pocket when he went visiting. When defendant’s attention was called to this testimony his explanation was in effect that it saved his mother trouble in washing to carry socks and other laundry in his pockets. In this kind of a context, the testimony of the policeman that defendant did not give a ‘ ‘ reason ’ ’ why he had the socks .seems of no significance. If this was error, it was harmless. The proof of defendant’s guilt on the whole record is overwhelming (People v. Miles, 23 N Y 2d 527).

The judgment should be affirmed.

Chief Judge Fuld and Judges Burke and Gibsox concur with Judge Breitel ; Judge Bergax dissents and votes to affirm in a separate opinion in which Judges Scileppi and Jasex concur.

Judgment reversed and case remitted to Supreme Court, Bronx County, for further proceedings in accordance with the opinion herein.  