I would affirm the judgment appealed from.
The majority says that the prosecution’s cross-examination of the defense witness Pappadakos was premised on an implication that the witness had a duty to come forward and volunteer to the police and the prosecution his exculpatory version of the facts. Passing the question of whether this would constitute error (cf. People v Brown, 62 AD2d 715), I do not think that was the premise of the cross-examination. Nowhere in the cross-examination is there any use of the word duty or any statement to that effect. The basic premise of this line of cross-examination was not a presumed duty to come forward but rather that on the facts of this case the natural thing for the witness to do would be to point out to the police and the prosecution that there was a misapprehension, and that his failure to do this natural thing was sufficiently out of harmony with the witness’ version of the facts as to cast doubt on the credibility of the witness’ story and thus form a permissible subject for exploration on cross-examination and comment in summation.
The witness testified that at about 5:00 a.m. after he and defendant had been drinking together for about an hour, they walked past an antique store and noticed that the front door was broken and ajar; that defendant went inside to explore; that the witness went on about 100 feet and then turned back to encourage defendant to leave; that he saw the police car and saw defendant brought out by the police and handcuffed. As defendant was his friend, and as the witness knew that the police were arresting his friend under an obvious misapprehension, it would be quite natural for the witness, on the scene, to say to the officers that they were making a mistake. His failure to do so, then or later, despite the obvious motiva*413tion to help a friend, casts doubt on the truthfulness of his story and is thus a proper subject of cross-examination. That this, rather than a supposed duty, is the premise of this line of cross-examination, clearly appears from the prosecution’s statement on summation: "His friend Maschi sleeps in his house on occasion. They drink together. They buy drinks for one another. One for all and all for one except when your friend is in trouble you run. You stand on a street corner and you watch. Make sure nobody sees you so you don’t like cops, understandable. You don’t go to the precinct, you don’t go to the Grand Jury and testify, speak to the DA, officers and say listen, the guy I just saw him. He didn’t go in. He didn’t break anything.”
Of course there may be reasons why the witness might not have spoken up even at the risk that his innocent friend would go to prison. But surely those reasons are not so inevitable as to preclude cross-examination. The witness’ conduct and the reasons for it are thus a proper subject for the jury to consider in assaying the witness’ credibility.
As the defense was essentially lack of criminal intent, certain of the other items of cross-examination claimed to be improper were admissible to show intent particularly under the intent exception of People v Molineux (168 NY 264, 297).
The other claims of improper cross-examination to the rather limited extent that they are improper and not corrected by the Judge’s instructions, do not, in my judgment, remove the case from the rule stated in People v Crimmins (36 NY2d 230, 242) that convictions shall not be reversed unless "there is a significant probability * * * that the jury would have acquitted the defendant had it not been for the error or errors which occurred.”
The proof of guilt is overwhelming. There can hardly be stronger evidence of burglary than to find a defendant, at 5:00 o’clock in the morning, in a store where he does not belong, with the door broken and ajar, and with articles, which had been in the display window when the store closed, now in a shopping bag. The defense that he just happened to wander in to explore is the same threadbare defense frequently urged by burglars caught in flagrante, and that generations of juries and Judges have found unpersuasive.
Murphy, P. J., Markewich and Sandler, JJ., concur with Fein, J.; Silverman, J., dissents in an opinion.
*414Judgment, Supreme Court, New York County, rendered on June 6, 1977, reversed, on the law, and the case remanded for a new trial.