Defendant appeals from his conviction on jury trial of attempt to commit the crime of robbery in the first degree.
The case presents perplexing and grave problems as to the admissibility of defendant Lockwood’s statement to the police officer, "We went down the subway, we knew we were going to rip somebody off,” under various exclusionary rules covering statements by an arrested defendant. But I think that even if the admission of that statement was error, it was harmless error beyond a reasonable doubt. (See People v Crimmins, 36 NY2d 230, 237, 242 [1975].)
Here, as in People v Sugden (35 NY2d 453, 463 [1974]): "On the entire record, the inescapable conclusion is that the conviction would not have been avoided even if the * * * confession had been excluded, and, hence, the error, if one there be, was harmless.” For if we delete the statement, the remaining evidence conclusively shows the defendant’s guilt. It shows, without contradiction, that the police officers observed the defendant Lockwood and his codefendant Collins in the street; saw them apparently following the complainant Fahey; saw Fahey stop at a store window on his way to the subway; saw the two defendants go down into the subway entrance; saw Fahey go down into the subway entrance; and shortly thereafter saw the two defendants come running out of the subway, whereupon the officers seized the defendants. The officers further testified that a pair of scissors fell from the codefendant’s person. Fahey testified that he grew suspicious of the defendants while he was still in the street; that he stopped at the store window and let them pass him; that when he went down into the subway, at the bottom of the stairs, the two defendants grabbed him tearing his sweatshirt and, holding a pair of scissors and a knife to his throat, said, "We want to talk to you, man”; that Fahey screamed and broke away from the defendants and ran toward the token booth; that the defendants ran out of the subway; that shortly thereafter one of the officers found Fahey; that Fahey came out of the subway, saw the two defendants and immediately identified them as the culprits. There was no evidence the other way or any that cast a shadow of doubt on any of this. In these circumstances no reasonable jury in the City of New York could have any reasonable doubt but that defendants were *19attempting to rob Fahey by using or threatening the immediate use of a dangerous instrument, i.e., they were attempting to commit the crime of robbery in the first degree, and that is what the jury convicted them of. With or without Lockwood’s statement to the police, conviction was inevitable. For these reasons, the admission of the statement, if error, was harmless beyond a reasonable doubt.
The dissenting opinion points out problems with respect to the admissibility of defendant Lockwood’s statement. But these problems do not alter the fact that in this case the error was harmless beyond a reasonable doubt. Delete the statement and the remaining evidence still demonstrates defendant’s guilt conclusively and beyond any possibility of a jury verdict the other way. Nor do I think that People v Ramos (40 NY2d 610 [1976]) cited in the dissenting opinion, requires a different result, for Ramos involved the defendant’s plea of guilty, while the present case involves a jury verdict after trial. A defendant has an absolute right to maintain a plea of not guilty and insist on a trial. Whether his insistence is rational or irrational, wise or unwise, is quite irrelevant. So, it is not an answer to a claim that the improper denial of the suppression motion may have influenced a plea of guilty to say that a rational intelligent defendant would still have pleaded guilty. Furthermore, at the time of a plea of guilty, before trial, no one can predict how conclusive the evidence at the trial will be or what unexpected developments there may be at the trial. In the Ramos case, the Court of Appeals said (p 619), "It is enough in this case to note that the confession was a likely factor which might have induced the plea and might have affected substantially a verdict upon a trial.”
But here we deal with a jury verdict after trial. We know what the evidence was. No doubt an unreasonable jury could have acquitted the defendants. But we must assume a reasonable jury—a jury not free to indulge in whim or caprice but bound by its oath "to render a verdict according to the law and the evidence” (CPL 270.15, subd 2). And on the evidence that was presented at the trial and which we now know, no such jury would have acquitted these defendants.
Without in any way detracting from the seriousness of the question as to whether the statement was admissible I should perhaps note that although the detention facilities here involved were physically in the courthouse, those facilities were not under the jurisdiction or supervision of either the court or *20the Department of Correction. They were under the supervision and control of the Police Department as part of the central booking procedure adopted in the effort to improve and speed up police booking procedures in the Bronx. It is thus arguable that these detention facilities are really a substitute, and a preferable one, for police station facilities. I also note that the Criminal Court complaint had not yet been prepared at the time the defendant Lockwood made his statement. Perhaps these factors should not make, a difference; but they are among the reasons why I have referred to the problems of admissibility as "perplexing and grave.” As I say, these considerations do not alter the fact that the admission of the statement, if error, was harmless beyond a reasonable doubt.
Appellant complains of the District Attorney’s stating to the jury that the evidence was uncontradicted, as it was. Of course a defendant is entitled not to have the jury draw any unfavorable inference from defendant’s failure to testify (CPL 60.15, subd 2) and the prosecutor may not suggest to the jury that they should draw such an inference. But the defendant’s failure to testify is not evidence of anything. In particular, it does not reduce uncontradicted evidence to contradicted evidence. In my previous discussion of the harmlessness of the possible error in the admission of Lockwood’s statement, I noted the fact that there was no contradictory evidence. That seems to me to be a relevant consideration both for this court and the jury. It would seem to me that the prosecutor could plainly say to the jury, "You do not have here a problem of resolving contradictions in evidence. All the evidence is one way.” The statement by the prosecutor that the evidence is uncontradicted amounts to the same thing. There is authority supporting the propriety of such a statement. (See e.g., People v Hovey, 92 NY 554, 559 [1883], where the court repeated the prosecution reference to the "uncontradicted evidence”.) (See, also, People v Leonardo, 199 NY 432, 446 [1910]; People v Bolster, 24 AD2d 774 [1965]; People v Rodriguez, 38 NY2d 95 [1975].) Again, if this was error, it was harmless.
The judgment appealed from should be affirmed.