(dissenting). In my opinion, the judgment of conviction should be affirmed.
Notwithstanding the fact that the defense failed to object before the trial court that the prosecutor wrongfully elicited testimony, and commented upon during summation, concerning defendant’s assertion of his right to remain silent, which issue was, therefore, not preserved on appeal (see, People v Ford, 69 NY2d 775), it is proposed that this court now review this contention in the interests of justice. However, defendant should not be permitted to complain on appeal about something which, it is clear, his counsel not only did not challenge below but made affirmative use of in presenting his defense to the jury. In that connection, defendant’s attorney, deliberately and as a matter of trial tactics, endeavored to persuade the jury that the police, having conducted an incomplete and perfunctory investigation into the deceased’s homicide, had mistakenly accused defendant, an innocent eyewitness, of the crime since he was the most convenient suspect. Thus, at neither the pretrial colloquy nor in his omnibus motion did the defense attorney ever move to exclude any reference to defendant’s having asked for a lawyer. On the contrary, defendant’s attorney advised the court during the pretrial colloquy that it was his intention to attack the conduct of the police and the District Attorney in the questioning of defendant, resulting in a motion for recusal of the trial assistant. This strategy became evident in the course of the trial. Consequently, in an effort to counter the People’s circumstantial case against defendant, it suited his purpose to emphasize his client’s cooperation with the authorities, reminding the jury that defendant’s helpful attitude changed only when the police rewarded defendant’s assistance by indicating that he was under arrest. Accordingly, defendant’s counsel stated during his summation:
"The only time that the police ever really as investigators *92gave Mr. Carter a chance and told them what somebody else had said and that their investigation had turned out contrary evidence as to what he said, the fact that they arrested him, they had gone to the hospital, they handcuffed him, they take him out of the hospital, they take him out of the Precinct, they sat him down, bring him another police officer in, another detective, this time Detective Harvey to talk to him and they tell him that they talked to Pushcart Mike and Mike says that the story is not—that the bottle throwing incident took place the night before and not in the morning.
"And, finally, the light goes on, Edward Carter realizes that the police intend to charge him in this case and very, very suspiciously at that point says he wants to speak to a lawyer. Bad citizen.”
Indeed, an examination of the trial transcript reveals that defendant’s counsel did not merely make reference to his client’s desire to speak with a lawyer in order to rehabilitate the defense case in reaction to the People’s position but that the entire sequence of events surrounding defendant’s encounter with the police, including defendant’s having requested a lawyer, was crucial to the defense strategy. The minutes, therefore, demonstrate that it was counsel’s intention to communicate to the jury his contempt for the conduct of the police and, by implication, the prosecution, in hastening to condemn defendant without good cause simply because he was an easy target. As counsel noted, apparently in a sarcastic tone, regarding defendant’s having finally terminated his cooperation with the police: "They arrest him, they take him into custody. After he is in custody and no longer in this atmosphere having to try to figure out what happened here, but having been cuffed and ridden around in a police car, he is then placed under arrest. And, then again, very suspiciously he stops talking. I don’t think it’s—I think it’s not reasonable not to doubt Edward Carter’s guilt in this case, I don’t see how you can possibly not have far from reasonable but compelling doubt.”
Moreover, while it is true that the District Attorney did, in his summation, make some mention of defendant’s request for a lawyer, he did so largely in the context of commenting on the defense’s effort to portray defendant as a victim of police incompetence. At no time did the prosecutor urge that defendant’s silence was proof of guilt. In fact, even the District Attorney’s statement that "we have the evidence of a guilty mind”, although unfortunate, was not uttered specifically in *93connection with defendant’s having asked for a lawyer but with respect to his general conduct. The Court of Appeals has acknowledged that there may be unusual circumstances when use of a defendant’s pretrial silence is not precluded (People v De George, 73 NY2d 614; People v Conyers, 52 NY2d 454). The situation herein presents precisely such an exception to the general rule barring admission of evidence of pretrial silence; at any rate, the circumstances of this case do not warrant that we reach out in the interests of justice to consider a claim that is being raised for the first time on appeal.
Murphy, P. J., and Smith, J., concur with Rosenberger, J.; Kassal, J., concurs in a separate opinion; Milonas, J., dissents in a separate opinion.
Judgment, Supreme Court, New York County, rendered on November 18, 1987, reversed, on the law, the facts and as a matter of discretion in the interests of justice, and the matter remanded for a new trial.