The defendant’s conviction for *371attempted rape in the first degree should be reversed and a new trial directed for two compelling reasons.
First, the defendant’s constitutional rights were violated when he was cross-examined concerning his failure to give to the police and others at the time of his arrest the exculpatory account to which he testified at trial. Second, the defendant’s right to a fair trial was gravely impaired when he was cross-examined concerning the events underlying a previous arrest in a manner painstakingly calculated to persuade the jury that he was predisposed to commit precisely the kind of crime with which he was charged.
Gladys Ramos, a registered nurse, testified that at about 6:25 a.m. on May 13, 1975, she entered a garage where her car was parked preparatory to driving to work. She observed a man in the garage pointing a gun at her. She screamed and the man grabbed her. Mrs. Ramos continued to scream and struggle. The man said "Shut up” and at one point said "Shut up or I’ll kill you.” She then felt a blow to the side of her head and lost consciousness.
When Mrs. Ramos regained consciousness, police officers were standing over her and she was lying on the floor of the garage with her dress and slip pushed up to her chest and her pantyhose and panties down to her knees. The police covered her with a blanket and took her to a hospital.
She identified the defendant as her assailant although with some degree of uncertainty, first stating that the defendant was similar to the man she saw and then, more strongly, that his was "the face I still keep seeing.”
Victor Rodriguez lived in an apartment with windows facing the garage. Shortly before 6:30 a.m. he heard a scream, ran out of his apartment to his brother-in-law’s apartment down the hall, told him to call the police, and then returned to his apartment to watch the garage. He estimated the elapsed time as 30 seconds. He then saw a black man’s hand closing the garage door from the inside and continued to watch the closed door until the police arrived some two or three minutes later. The door he watched was the only entrance into the garage.
Two police officers testified that they responded at about 6:35 a.m. to a radio run, and were directed to the garage, where one of them opened the door. That officer saw the defendant holding a gun and both jumped back, the door closing by itself.
*372One officer yelled "Throw out the gun.” The door was opened further and the defendant was observed standing there. He was ordered to lie on the floor and handcuffed. Defendant was armed with a blackjack, bayonet and additional rounds of ammunition.
Mrs. Ramos was lying in the back of the garage. Her dress and slip were pushed up to her chest and her panties and pantyhose were down to her knees. There was a bruise on her cheek, scratches on her throat, and her eyes were discolored from ruptured blood vessels. She then sat up and was attended by other police officers who covered her with a blanket and took her to a hospital.
The defendant, a Housing Authority policeman for some nine years, testified that he had called his supervisor before 6 o’clock in the morning and asked for some time off to straighten out some personal problems. He armed himself because of the dangerous character of the neighborhood in which he lived. The defendant walked apparently without any particular destination towards the area in which these events occurred.
Defendant said that he heard screams, ducked into the garage door to see what was going on, and was struck under the left eye and in the neck. Stunned by the assault and semiconscious, he dimly heard the garage door closing. After a few minutes he struggled to his feet and took out his gun. The garage door started to open and he observed police officers. At their demand he threw out the gun, was forced to the ground, and told to remain quiet. He identified himself to them as a police officer.
Indisputably the evidence presented by the District Attorney was persuasive and the defendant’s own explanation far from convincing. Nonetheless, the conviction was by no means inevitable if the case had been appropriately tried. The strength of the District Attorney’s case depended in substantial part on the testimony of Mr. Rodriguez which was fundamentally inconsistent with the defendant’s own account.
While the sincerity of this witness is beyond question, it is by no means clear that a jury must necessarily have accepted as letter perfect his memory of the exciting, fast-moving events that occurred following the screams. If, for example, a juror doubted his memory as to when he first looked out the window, or his estimate of the time that elapsed between the screams and his first observation, or his recollection that he *373looked at the garage door continuously from his first observation until the arrival of the police, his testimony could have been reasonably evaluated as much less damaging than it appeared to be.
It is in this factual setting that we must consider the prosecutor’s cross-examination of the defendant concerning his failure to tell the police when arrested that which he testified to as a witness.
At the time the case was tried, the controlling authority was People v Rothschild (35 NY2d 355). In Rothschild, a police officer charged with accepting a bribe testified that he accepted the money in question pursuant to a plan to arrest for bribery the person giving him the money.
He admitted on cross-examination that he had not informed a superior officer of the alleged bribe offer prior to his acceptance of the money. He also admitted, in answer to a question to which an objection was overruled, that he had not told any superior officer or anyone after his arrest that he was attempting to make a bribery arrest.
The Court of Appeals held that the objection to this question, apparently the only question put on the subject, was properly overruled. The opinion described the issue presented as a novel one. It was noted in a footnote that other jurisdictions had arrived at varied results on that very question.
Relying in part on what was perceived as an analogy to the ruling by the Supreme Court in Harris v New York (401 US 222) the court concluded (People v Rothschild, 35 NY2d 355, 360-361, supra):
"Here we are presented only with the question of whether nonutterances, or silence, may be used against the defendant on cross-examination, when such silence is patently inconsistent with the defense asserted, and there is a patent obligation to speak. * * *
"We conclude that in the posture of this case the defendant’s silence may be the proper subject of cross-examination * * * The natural consequences of his status as a law enforcement officer would require him to promptly report any bribe or attempted bribe to his superiors, and certainly protest and reveal such an alleged scheme after his arrest to them, and to his fellow officers as well.”
After Rothschild was decided, the basic issue was addressed for the first time by the United States Supreme Court in *374United States v Hale (422 US 171). The conviction was reversed in an opinion that reserved for a later date the due process question.
The court held (supra, p 173): "We find that the probative value of respondent’s pretrial silence in this case was outweighed by the prejudicial impact of admitting it into evidence.”
The following comment is pertinent (supra, p 177): "At the time of arrest and during custodial interrogation, innocent and guilty alike—perhaps particularly the innocent—may find the situation so intimidating that they may choose to stand mute.”
In Doyle v Ohio (426 US 610) the constitutional issue implicit in this kind of cross-examination was squarely faced and decided. After referring to the Miranda warnings, the Supreme Court went on to say (supra, pp 617-618): "Silence in the wake of these warnings may be nothing more than the arrestee’s exercise of these Miranda rights. Thus, every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested * * * In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.”
The court then concluded (supra, p 619): "We hold that the use for impeachment purposes of petitioners’ silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment”.
I see no support whatever in the Doyle decision for an interpretation that the holding in Rothschild (35 NY2d 355, supra) remains viable for the special facts there presented. The Supreme Court said (426 US 610, 617, supra) that "every post-arrest silence is insolubly ambiguous.” It did not say that only some were, or that only those that did not involve a police officer were. We surely may not assume that the word "every” was selected casually, or by some mischance, or without full awareness of the problem presented in Rothschild which had been decided prior to the decision of the Supreme Court in Doyle and was surely known to that court. Indeed, it could be persuasively argued that the Doyle analysis applies with even greater force to a police officer arrested under incriminating circumstances. Such an arrestee might reasonably be thought to be even more conscious than the average *375person of the wisdom of consulting a lawyer before saying anything and of the likelihood that whatever he said would be futile at best and might prove damaging.
Even if I am in error with regard to this, and Rothschild (35 NY2d 355, supra) remains viable law, it would surely be a dubious enterprise at this point to extend Rothschild to the situation of an off-duty housing patrolman who said that he responded (as a civilian might have) to a woman’s screams.
Accordingly, what occurred here was a constitutional error as to which it cannot be seriously urged that the error was harmless beyond a reasonable doubt. (People v Crimmins, 36 NY2d 230, 237.)
What the record discloses was not simply one or two questions not followed up by the District Attorney, and of no likely consequence. The defendant’s interrogation as to his silence at the time of arrest was a substantial and effective part of the cross-examination. His answers to questions that should not have been put were astutely exploited to damage his credibility in a case in which the defendant’s credibility was critical.
Thus, following up on the defendant’s claim that he had quickly indentified himself as a police officer, the District Attorney asked if he told the arresting officers the story he told on the witness stand. The defendant responded that he had no opportunity to do so since he had been forced to lie on the ground and told to be quiet.
When then asked if he had an opportunity to talk to the police officers in the patrol car on the way to the precinct, the defendant was forced to acknowledge that he had not spoken to them although there was an opportunity to do so. The effectiveness of this can hardly be doubted. And the very same theme was renewed later in the cross-examination, with comparable results, with regard to defendant’s omission to tell the arresting officers that he had been struck by the alleged unknown assailant and suffered injuries.
The defendant’s right to a fair trial was further impaired by the character of his cross-examination with regard to the facts underlying a prior arrest. The District Attorney made an unmistakable effort to persuade the jury that the defendant was predisposed to commit precisely the kind of crime charged. His questions were meticulously designed to inform the jury that the defendant had been previously accused by another woman of criminal behavior that was in all material respects identical to that for which he was on trial.
*376During this cross-examination the defendant acknowledged that at about 4:30 a.m. on September 18, 1973, he had an altercation with a certain woman.
The record discloses the following questions and answers:
"Q On that day. Did you take out your gun and threaten to kill this girl on that date?
"A No sir.
"Q.Was this a girl friend of yours?
"A Yes sir, it was.
"Q Didn’t you place a gun to her head, on that date?
"A No sir, I didn’t.
"Q Did you knock her to the ground on that date?
"A No sir, I didn’t.
"Q Did you tell her not to scream anymore or you’d blow her head off?
"A No sir, I didn’t.
"Q On that date?
"A No sir.
"Q On that day, on May 13th, 1975—1975, didn’t you put the gun to the head of Gladys Ramos and tell her to shut up or you’d blow her head off?
"A No sir, I didn’t.
"Q Did you have an altercation with Glenda Ollie on September 18, 1973?
"A As I said before—
"Q Did you have an altercation with her on that date? Yes or no?
"A I had an altercation with a Darlene that I knew Glenda Ollie as being.
"Q Is it a fact that on that same date, at about 4:30 in the morning, she said she had never seen you before?
"A That is correct.
"Q And that you had come up to her and put a gun to her head and told her you’d blow her head off?
"A She said that?
"Q Did she say that?
"A Did she say that to me? She didn’t say that to me.
"Q Did she say that?
*377"A I have no idea. She might have advised the police of that.
"me. broughton: Objection.
"the court: No. Overruled.”
The adroit insertion into the middle of this examination concerning the prior incident of a question directed to the charge on trial, patently designed to dramatize the similarity of the two events, makes the District Attorney’s improper purpose transparently clear, if indeed there were - otherwise any basis for doubt.
What occurred was grossly unfair, in blatant violation of a long-established fundamental principle, and whether considered by itself or in conjunction with that described earlier, deprived the defendant of a fair trial. (People v Mayrant, 43 NY2d 236, 239; People v Zackowitz, 254 NY 192, 197; People v Santiago, 47 AD2d 476, 479.)
Chief Judge Cardozo long ago expressed the controlling principle in People v Zackowitz (254 NY 192, 197, supra): "Inflexibly the law has set its face against the endeavor to fasten guilt * * * by proof of character or experience predisposing to an act of crime * * * The endeavor has been often made, but always it has failed.”
Kupferman, J. P., and Lane, J., concur with Birns, J.; Fein, J., concurs in an opinion; Sandler, J., dissents in an opinion.
Judgment, Supreme Court, Bronx County, rendered on December 2, 1975, affirmed.