The evidence adduced by the district attorney from the People’s witness Dyer that the defendant was silent when Reynolds, an alleged accomplice, accused the defendant in the latter’s presence of the crime charged, was improper. The rule announced in Kelley v. People (55 N. Y. 565), under which this proof might formerly have been admissible, has been expressly *472overruled by recent decisions (People v. Pignataro, 263 N. Y. 229, 236; People v. Butigliano, 261 id. 103; People v. Dolce, Id. 108). “ The principle as now established in this State is to the effect that a person in custody accused of a crime is under no duty to speak and that his silence should not be counted as giving assent.” (People v. Pignataro, supra.) We find further error in the fact that the district attorney proved by the People’s witness Reynolds, an accomplice, that he had pleaded guilty to the robbery in which defendant is alleged to have been involved. (People v. O’Regan, 221 App. Div. 331.) These errors were prejudicial to the defendant’s substantial rights. In the interest of justice to this defendant the judgment of conviction should be reversed and a new trial granted.
All concur, except Thompson, J., who dissents and votes for affirmance in an opinion. Present — Sears, P. J., Taylor, Thompson, Crosby and Lewis, JJ.