(dissenting). Conflicting testimony was presented at trial as to what occurred after the complainant, Robert Johnson, and the defendant, James Savage, left a neighborhood bar at about 4:00 a.m. on January 4, 1977. The complainant and another prosecution witness, Elmore Giles, averred that there was a brief discussion between Johnson and Savage as to whether Johnson would be permitted to accompany Savage to a White Castle for hamburgers. When Johnson turned and began to walk away from the exchange, he was shot by Savage. On the other hand, defendant Savage, who suffers from cerebral palsy, stated that he shot Johnson as the latter attempted to rob him. The defendant maintained that he subsequently panicked and left the scene of the occurrence.
Defendant was apprehended on February 21, 1977. Detective Creegan testified, without objection, that the defendant was given his Miranda warnings. Thereafter, the defendant allegedly told the detective that "I’m glad I’m caught. I’m tired.” According to the detective’s account, the defendant stated that he had shot Johnson on the morning in question. The defendant also related the names of the individuals present at the time of the dispute but he did not detail the nature of the dispute.
The defendant testified on his own behalf; his testimony was limited to the facts surrounding the shooting and the presentation of his exculpatory defense. On cross-examination, the *567prosecutor asked the defendant whether he had told Creegan that Johnson tried to rob him. Over defense counsel’s objection, the defendant was required to answer and did answer that he had informed Creegan that Johnson attempted to rob him. The prosecutor then pursued the following line of questioning:
"Q. Did you hear me ask Detective Creegan whether or not you had given him any details of the shooting?
"A. Yes, I heard you.
"Q. And did you hear what Detective Creegan said?
"A. Yes, I heard what he said.
"Q. Did you hear him say anything about a robbery?
"A. No, he didn’t.
"Q. And isn’t it a fact that he didn’t say anything about a robbery because you didn’t tell him anything about a robbery?
"A. No. That is not a fact.
"Q. Isn’t the first time you. started thinking in terms of a robbery was after you spoke with a lawyer?
"A. No, it isn’t.”
In summation, the prosecutor reiterated his belief that the defense of justification was tailor-made to the facts in this case. Ultimately, the jury convicted the defendant of assault in the first degree.
The United States Supreme Court has found that, in view of the fact that an individual has a right to remain silent upon his arrest (Miranda v Arizona, 384 US 436), it would be fundamentally unfair and a deprivation of due process to allow his postarrest silence to be used to impeach an explanation offered at trial (Doyle v Ohio, 426 US 610, 618; People v Arce, 42 NY2d 179, 187; People v Bianculli, 9 NY2d 468, 472). The highest court did state that postarrest silence could be used by the prosecution to contradict a defendant who testifies to an exculpatory version of events and claims to have told the police the same version upon arrest. In that situation, the Supreme Court noted that the fact of earlier silence would not be used to impeach the exculpatory story, but rather to challenge the defendant’s testimony as to his behavior following arrest (Doyle v Ohio, supra, pp 619-620, n 11).
The Court of Appeals, in a pre-Doyle opinion (People v Rothschild, 35 NY2d 355), also permitted a defendant to be impeached where his postarrest silence was inconsistent with *568his defense at trial. Rothschild, a police officer, was indicted for grand larceny and other related charges. Rothschild’s defense was that he was not taking a bribe but that he was attempting to "set up” a bribe giver for criminal prosecution. In affirming, the Court of Appeals found that the prosecution properly cross-examined him as to why he had not informed his superiors of the bribe offer, either before or after his arrest.
In this proceeding, Savage did not directly testify that he gave an exculpatory version of the events to Detective Creegan after his arrest. Assuming Creegan’s testimony to be true, the detective never even called the defendant’s attention to or asked him about the details surrounding the occurrence. (People v Bornholdt, 33 NY2d 75, 88.) According to Creegan, the defendant did state that "I’m glad I’m caught. I’m tired.” This statement does not express an exculpatory version of the events. It is, at most, an ambiguous statement open to varied interpretation. It was for the jury to determine whether the remark was the utterance of a criminal or an innocent person. From the foregoing discussion, it is clear that the footnote exception enunciated in Doyle did not become operative (426 US 610, 619, 620, n 11).
Likewise I would find the principle propounded in Rothschild is not controlling on the facts in this case. The defendant’s postarrest silence was not inconsistent with his defense of justification. Furthermore, he was under no obligation to reveal that defense prior to trial.
Since serious error was committed in permitting cross-examination and summation on the defendant’s postarrest silence (People v Bennett, 65 AD2d 801), the judgment of the Supreme Court, Bronx County (Schackman, J.), rendered September 30, 1977, convicting defendant after a jury trial of assault in the first degree, should be reversed, on the law, and the matter remanded for a new trial.
Kupferman, Sullivan and Lupiano, JJ., concur with Lane, J.; Murphy, P. J., dissents in an opinion.
Judgment, Supreme Court, Bronx County, rendered on September 30, 1977, affirmed.