Appeal from a judgment of the County Court, Nassau County, convicting appellant of operating a motor vehicle in an intoxicated condition as a felony (Vehicle and Traffic Law, § 70, subd. 5), and imposing sentence of one year in the county jail, and from each and every intermediate order therein made. Judgment affirmed. No opinion. No separate appeal lies from the intermediate orders, which have been reviewed on the appeal from the judgment. Wenzel, Beldoek, Ughetta and Kleinfeld, JJ., concur; Nolan, P. J., dissents and votes to reverse the judgment and to grant a new trial, with the following memorandum: On the trial, appellant testified that he had not operated the automobile which he was accused of driving while intoxicated, and that in fact it had been driven by another person who was taking him home. On cross-examination evidence was admitted over his objection that he had made no such assertion on the occasion of his arrest and while in custody, and the fact that he had not made such a statement, when arrested, was stressed in summation by the assistant district attorney, who represented the People. The admission of such evidence and its use in summation against appellant was in my opinion prejudicial error which was not cured by the County Judge’s instructions to the jury as to the weight to be given to the evidence (cf. People v. Rutigliano, 261 N. Y. 103; People v. Mleczko, 298 N. Y. 153; People v. Abel, 298 N. Y. 333). Since appellant was under no duty to speak, his failure to speak at the time of his arrest was not a proper test of the credibility of his testimony on the trial.