People v. Pavone

I respectfully dissent. As the majority concedes, an error of constitutional dimension occurred during *1337this trial, when evidence of defendant’s pretrial exercise of his right to remain silent was improperly used against him. The restriction against use of a defendant’s silence is premised upon the fundamental unfairness that arises when the state implicitly assures an arrested person that silence will not be used against him or her and then reneges upon that promise (see Doyle v Ohio, 426 US 610, 618-619 [1976]; People v Savage, 50 NY2d 673, 677-678 [1980], cert denied 449 US 1016 [1980]).…