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February 10, 1975

Stanley ROTHSCHILD, Plaintiff,
STATE OF NEW YORK et al., Defendants

Werker, District Judge.

The opinion of the court was delivered by: WERKER


WERKER, District Judge.

 The petitioner is a former New York City policeman convicted in New York Supreme Court of grand larceny in the first degree and attempted grand larceny, both by extortion. *fn1" His conviction *fn2" was unanimously affirmed by both the Appellate Division of that court *fn3" and by the New York Court of Appeals. *fn4" The gravamen of the petition for writ of habeas corpus is that the trial court committed errors of constitutional proportions in permitting the prosecutor to bring out on Rothschild's cross-examination his "good intentions" in doing the acts alleged to constitute attempted grand larceny and then impeach that testimony by bringing out his failure to explain those intentions upon or after arrest. Specifically Rothschild points to the trial court's refusal to permit him to testify on direct that his intention had been merely to arrest the complainant for bribery, *fn5" and argues that (1) using evidence of post-arrest silence at trial, even for purposes of impeachment alone, violates the defendant's fifth amendment right to remain silent; (2) Rothschild's post-arrest silence is not inconsistent with his trial testimony and therefore can not be used to impeach; and (3) the district attorney in any case can not cross-examine as to areas not covered by direct testimony in order to lay a foundation for impeachment.

 Although this court is in agreement with petitioner's arguments, as discussed below, it denies the petition for writ of habeas corpus because the record reveals overwhelming evidence of Rothschild's guilt; any errors committed by the trial court were "harmless beyond a reasonable doubt." Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967); cf. United States v. McCarthy, 473 F.2d 300, 304-05 (2d Cir. 1972). In Chapman the Supreme Court stated:

We are urged by petitioners to hold that all federal constitutional errors, regardless of the facts and circumstances, must always be deemed harmful. Such a holding, as petitioners correctly point out, would require an automatic reversal of their convictions and make further discussion unnecessary. We decline to adopt any such rule. All 50 States have harmless-error statutes or rules, . . . . All of these rules, state or federal, serve a very useful purpose insofar as they block setting aside convictions for small errors or defects that have little, if any, likelihood of having changed the result of the trial.

 Id., 386 U.S. at 21-22, 87 S. Ct. at 827. In this case the court is convinced that the jury would have chosen to convict the petitioner even if Rothschild had been permitted to testify on direct as to his intentions, and the district attorney had been precluded from cross-examination as to post-arrest silence.

 The New York Court of Appeals summarized the evidence against Rothschild as follows:

On October 21, 1969, defendant and other Narcotic Division officers, armed with a search warrant, entered the apartment of Geraldine Williams, the common law wife of William Mathis, Jr. They threatened to send her to jail on a trumped up charge and to deprive her of her children unless she called her "father-in-law," William Mathis, Sr. [Mathis] to make arrangements to have him come to the apartment immediately. Frightened, she complied, and upon Mathis' arrival, defendant demanded $6,000 from him, threatening to send Miss Williams to jail if he did not comply. Mathis left and, after a short while, returned and paid the money, whereupon defendant and his companions departed.
Thereafter, and on December 6, the defendant again sought out Mathis, this time on the pretext that he wanted to locate Mathis' son . . . whom he wanted to interrogate regarding a narcotics investigation. The defendant then advised Mathis that he could "[smooth] things over" for $12,000 and, of course, he would not then need to locate the son. Mathis protested that he had no money but agreed to meet with the defendant at a later date. Mathis then went to police headquarters where he related all these events to the officers in command. Following their instructions, he met with the defendant and agreed to pay the money in installments, the first to be made on December 11. On that date, the police gave Mathis $280 in marked bills, wired his establishment with recording devices and several officers secreted themselves on the premises. Upon defendant's arrival, Mathis engaged him in conversation* culminating in defendant agreeing to accept the money in installments. When Mathis handed defendant the marked money, the officers entered the room, revealed their identity and arrested him.

 This evidence was presented through the testimony of Mathis, Mathis Jr., Geraldine Williams and the arresting officers, and was in large measure confirmed by the tape recording of the December 11th conversation. The only defense presented as to the attempted grand larceny charge was that of "good intentions," i.e., that he had been approached by Mathis and had agreed to accept the money offered only in order to arrest him for bribery.

 Had there been less than overwhelming evidence of guilt, this court would be inclined to grant petitioner a writ of habeas corpus. Relevant case law in both the federal and state courts clearly provides that where a defendant's intent is in issue he should be permitted on direct examination to testify as to that intent. Crawford v. United States, 212 U.S. 183, 202-03, 29 S. Ct. 260, 53 L. Ed. 465 (1908); United States v. Kyle, 257 F.2d 559, 563 (2d Cir. 1958); People v. Levan, 295 N.Y. 26, 33-34, 64 N.E.2d 341 (1945); People v. Stewart, 37 A.D.2d 908, 325 N.Y.S.2d 533 (4th Dept. 1971). See also United States v. Hayes, 477 F.2d 868, 873 (10th Cir. 1973) and cases cited therein. In this case the defendant was precluded from doing so in any but the most indirect manner (see note 5, supra). At each attempt the trial court sustained objections to such testimony as hearsay. *fn6"

 In Harris v. New York, the Supreme Court confirmed with respect to illegally obtained statements what has long been hornbook law in New York, that evidence not admissible on the prosecution's direct case may be used on cross-examination to impeach the defendant's credibility as a witness. This can occur, however, only when the defendant has opened the door by testifying to the matter on direct examination. People v. Rahming, 26 N.Y.2d 411, 418, 311 N.Y.S.2d 292, 298, 259 N.E.2d 727, 731 (1970); People v. Harris, 25 N.Y.2d 175, 177, 303 N.Y.S.2d 71, 72, 250 N.E.2d 349, 350 (1969), aff'd, 401 U.S. 222, 91 S. Ct. 643, 28 L. Ed. 2d 1 (1971); People v. Miles, 23 N.Y.2d 527, 542-45, 297 N.Y.S.2d 913, 924-26, 245 N.E.2d 688, 696-97 (1969). The purpose of allowing such impeachment use of inadmissible evidence is to prevent the defendant from "affirmatively [resorting] to perjurious testimony in reliance on the Government's disability to challenge his credibility." Walder v. United States, 347 U.S. 62, 65, 74 S. Ct. 354, 356, 98 L. Ed. 503 (1954). Accord Harris v. New York, supra, 401 U.S. at 226, 91 S. Ct. 643.

 In the Rothschild trial, although defendant did testify as to his intention, he did so not on direct, but on cross-examination at the prosecutor's behest. This is a different situation than that found in Harris v. New York, where the prosecution "did no more than utilize the traditional truth-testing devices of the adversary process." 401 U.S. at 225, 91 S. Ct. at 645. To allow the district attorney to impeach testimony which he himself had elicited for the first time in the same cross-examination is to allow the state to build a case against the defendant's credibility by bootstrapping. This is clearly not permissible. See Agnello v. United States, 269 U.S. 20, 35, 46 S. Ct. 4, 70 L. Ed. 145 (1925); People v. Rahming, supra ; People v. Schwartz, 30 A.D.2d 385, 292 N.Y.S.2d 518, 522 (1968).

 The petitioner also urges that although impeachment use of prior inconsistent statements has been upheld by the Supreme Court, such use of post-arrest silence in this case was not constitutionally correct because Rothschild's silence is not in any way inconsistent with his later ...

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