
    The People of the State of New York, Respondent, v. Miles Christman and Thomas J. Kress, Appellants.
    Argued October 14, 1968;
    decided January 9, 1969.
    
      
      John Van Voorhis and Eugene Van Voorhis for Thomas J. Kress, appellant.
    I. It was reversible error for the trial court to have admitted the testimony of police detectives that the complaining witness identified both defendants from photographs produced by the police at the police station and in lineups at the station. (People v. Cioffi, 1 N Y 2d 70; People v. Trowbridge, 305 N. Y. 471; People v. Hagedorny, 272 App. Div. 830; People v. Caserta, 19 N Y 2d 18; People v. Wright, 21 N Y 2d 1011; People v. McLucas, 15 N Y 2d 167; People v. Arthur, 22 N Y 2d 325; People v. Friola, 11 N Y 2d 157; People v. McQueen, 18 N Y 2d 337; Fields v. City of New York, 4 N Y 2d 334.) II. It was reversible error to have received the testimony of police detectives to admissions made by Christman implicating Kress at least to the extent of stating that they were together in his car and had tried without success to pick up a girl at the time and place specified by complainant. (People v. LaBelle, 18 N Y 2d 405; People v. Boone, 22 N Y 2d 476; People v. Pollock, 21 N Y 2d 206; People v. Burrelle, 21 N Y 2d 265; People v. Jackson, 21 N Y 2d 794; Bruton v. United States, 391 U. S. 123; Roberts v. Russell, 392 U. S. 293.) III. The Assistant District Attorney should not have been allowed to comment on the failure of appellants to exculpate themselves from the charges made against them while they were being interrogated by the police, nor should the Trial Judge have commented adversely to defendants upon their failure to take the witness stand. (Griffin v. California, 380 U. S. 609; Miranda v. Arizona, 384 U. S. 436; Coleman v. Denno, 223 F. Supp. 938, 330 F. 2d 441, 377 U. S. 1003; People v. Orgovan, 14 A D 2d 482; People v. Travato, 309 N. Y. 382.) IV. Section 1938 of the Penal Law prohibited consecutive sentences upon appellant’s convictions for attempted rape and assault with intent to commit rape inasmuch as both of these crimes, if committed at all, here depend upon the same conduct. (People v. Lombardi, 20 N Y 2d 266.) V. Unlawful search and seizure of appellant Christman’s automobile and its contents deprived appellants of their constitutional rights.
    
      Richard S. Fischer for Miles Christman, appellant.
    I. The court erred in denying defendant’s motion to suppress illegally seized evidence. (People v. Donovan, 13 N Y 2d 148; People v. Gunner, 15 N Y 2d 226; Stoner v. California, 376 U. S. 483; Miranda v. Arizona, 384 U. S. 436; Johnson v. Zerbst, 304 U. S. 458.) II. The trial court erred in allowing “ prior identification ” testimony. (People v. Malloy, 22 N Y 2d 559; People v. Caserta, 19 N Y 2d 18; People v. Cioffi, 1 N Y 2d 70; People v. McLucas, 15 N Y 2d 167; People v. Arthur, 22 N Y 2d 325.) III. The comments of the prosecutor and Judge on defendant’s failure to testify violated his rights under the State and Federal Constitutions. (Griffin v. California, 380 U. S. 609; Miranda v. Arizona, 384 U. S. 436.) IV. Complainant’s testimony was not corroborated. (People v. Radunovic, 21 N Y 2d 186; People v. English, 16 N Y 2d 719; People v. Lennon, 22 N Y 2d 677; People v. Jenkins, 22 N Y 2d 675; People v. Colon, 16 N Y 2d 988; People v. McQueen, 18 N Y 2d 337; People v. Loria, 10 N Y 2d 368; Knapp v. Fasbender, 1 N Y 2d 212; Matter of Tartaglia v. McLaughlin, 297 N. Y. 419; Quaker Oats Co. v. City of New York, 295 N. Y. 527.) V. The court could not impose consecutive sentences for attempted rape and assault with intent to commit rape. (People v. Lombardi, 20 N Y 2d 266.)
    
      John C. Little, Jr., District Attorney (Norman A. Palmiere of counsel), for respondent.
    I. Proof by police officer that complaining witness made pretrial identification of defendant does not mandate reversal. (People v. Caserta, 19 N Y 2d 18; People v. Jung King, 212 N. Y. 393; People v. Cioffi, 1 N Y 2d 70; People v. Trowbridge, 305 N. Y. 471; People v. Ross, 21 N Y 2d 258; People v. Lingley, 207 N. Y. 396.) II. Pretrial admission of codefendant Christman involving appellant Kress does not require reversal. (People v. Jackson, 21 N Y 2d 794; Bruton v. United States, 391 U. S. 123.) III. Prosecutor’s comment in summation to the effect that appellant did not tell police the names of his alibi witnesses did not refer to failure of defendant to testify and was not improper. (People v. Bianculli, 9 N Y 2d 468; People v. Bolster, 24 A D 2d 774; People v. Hovey, 92 N. Y. 554; People v. Leonardo, 199 N. Y. 432.) IV. Under the facts in the instant record, the imposition of consecutive sentences for the crimes of attempted rape and assault with intent to commit rape did not violate section 1938 of the Penal Law. (People ex rel. Maurer v. Jackson, 2 N Y 2d 259; People v. Lombardi, 20 N Y 2d 266.) V. The seizure of defendant’s automobile and the consequent search was not unreasonable and therefore did not violate defendant’s Fourth Amendment right against unreasonable search and seizure. (People v. Donovan, 13 N Y 2d 148; People v. Failla, 14 N Y 2d 178; People v. Gunner, 15 N Y 2d 226; People v. Arthur, 22 N Y 2d 325; Stoner v. California, 376 U. S. 483; Cooper v. California, 386 U. S. 58; Preston v. United States, 376 U. S. 364.) VI. Corroboration is not required to establish and sustain a conviction for the crime of attempted rape where there is no proof of a consummated rape. (People v. Phillips, 204 App. Div. 112, 235 N. Y. 579; People v. Wassserbach, 271 App. Div. 756; People v. McGhee, 19 A D 2d 845; People v. Manwaring, 3 A D 2d 952; People v. Colon, 16 N Y 2d 988; People v. Sigismondi, 49 Misc 2d 1.)
   Per Curiam.

Defendants have been convicted of attempted rape, first degree, sodomy, first degree, and of two counts of assault in the second degree, one with attempt to commit sodomy, the other with attempt to commit rape. Both defendants offered proof of alibis; but neither testified at the trial. After arrest Kress refused to make any statement to the police except to identify himself; Christman made no admission of any of the acts complained of and denied them, but said he and Kress had been together at the time of the crime. In summation the prosecutor argued that the defendants had not told the police anything of the facts of their alibis. “ Why didn’t Christman or Kress, either of them, why didn’t they tell the police they were with the three individuals * * * ? ” The prosecutor continued further in this vein. On objection the court ruled this was ‘ ‘ fair comment upon the testimony or lack of it ’ ’.

Appellants argue that this comment was the equivalent of instructing the jury that they were under the duty of making an explanation to the police when they were arrested and that the lack of such explanation might be considered on their guilt. They contend that the summation and the comment by the Judge were prejudicial. It could thus have been counted against defendants that there was no police testimony that appellants told them about alibi witnesses; or, alternatively, that they failed to explain on the trial where they were at the time.

Defendants were under no obligation when questioned after arrest to say anything or to lay out an alibi (People v. Travato, 309 N. Y. 382; People v. Bianculli, 9 N Y 2d 468; People v. Orgovan, 14 A D 2d 482; cf. Griffin v. California, 380 U. S. 609). Decisions cited by the People (e.g., People v. Leonardo, 199 N. Y. 432; People v. Hovey, 92 N. Y. 554) are not relevant to the present case. The error was substantial and a new trial is required.

Although this disposes of the appeal, it is desirable to take note of several other questions advanced by the defendants since they may recur on the new trial. It was improper to admit testimony from the complaining witness that she had identified the defendant Kress through a photograph at the police station (People v. Cioffi, 1 N Y 2d 70; People v. Caserta, 19 N Y 2d 18; People v. Malloy, 22 N Y 2d 559) and to receive against that defendant a statement made to the police by his codefendant Christman that he and Kress were together in an automobile about the time of the alleged crime.

The seizure of Christman’s car and its inspection were likewise improper though, it should be noted, the evidence educed therefrom did not adversely affect or prejudice either defendant. No fingerprints or other evidence was found in the car. The blanket found there and received in evidence was not connected with the crime and itself had no probative force.

The defendants’ final contention regarding the imposition of consecutive sentences has merit. Although the assaults with intent to commit rape and attempted rape were, respectively, capable of separate prosecution and conviction, they were so unified with the basic acts made criminal by the Penal Law that, on the present record, they could not be the basis for separate punishments (former Penal Law, § 1938, now § 70.25, subd. 2; People ex rel. Maurer v. Jackson, 2 N Y 2d 259; People v. Repola, 305 N. Y. 740). Hence, additional separate consecutive sentences for attempted rape and for assault with intent to commit rape may not be imposed.

The judgments should be reversed and a new trial ordered.

Chief Judge Fuld and Judges Burke, Scileppi, Bergan, Keating, Breitel and Jasen concur.

Judgments reversed, etc.  