People v. Spinelli

Citation214 A.D.2d 135,631 N.Y.S.2d 863
PartiesThe PEOPLE, etc., Respondent, v. Thomas SPINELLI, Appellant.
Decision Date15 September 1995
CourtNew York Supreme Court Appellate Division

Slotnick & Baker, New York City (Barry I. Slotnick, Mark M. Baker, and Lori E. Mann, of counsel; Kenneth R. Ashford, on the brief), for appellant.

Richard A. Brown, District Attorney, Kew Gardens (Tammy J. Smiley and Gary Fidel, of counsel), for respondent.

Before O'BRIEN, J.P., and JOY, KRAUSMAN and FLORIO, JJ.

OPINION OF THE COURT

Upon the court's own motion, its unpublished opinion and order in this case dated September 11, 1995 is recalled and vacated and the following is substituted therefor:

O'BRIEN, Justice Presiding.

The defendant testified at trial to certain exculpatory facts which he had omitted from his statements to the police at the scene of the crime. The issue presented on appeal is whether it was permissible for the prosecutor to argue in summation that such omissions rendered the defendant's testimony unworthy of belief. We conclude that, since the prosecutor failed to cross-examine the defendant about the omissions, his comments during summation upon the defendant's pretrial silence were unduly prejudicial and deprived him of a fair trial.

I

The defendant was convicted of manslaughter in the second degree for the shooting death of his neighbor, Jerry Liebowitz, on the street outside of the house where they both lived in Queens. When the police arrived at the scene, Liebowitz was lying half in and half out of his car, with a single gunshot wound to his chest. The defendant and a third man, Eddie Cintron, were nearby. Police Officer Rall asked the defendant what happened, and he replied "I shot him. I shot him". Officer Rall then asked the defendant where the gun was, and he said it was in his house. Accompanied by his partner, Officer Rall followed the defendant into the basement of the house where the defendant retrieved a gun from inside a dropped ceiling. It was established at the defendant's trial that the bullet which killed Liebowitz was fired from this gun. After he produced the gun, the defendant was informed that he was under arrest. He was placed in handcuffs and given Miranda warnings by Officer Rall. The defendant said he understood his rights and then, without any questioning by the police, stated "another man Eddie was involved. He had a gun and he ran and put it in the house".

Eddie Cintron, a prosecution witness, was employed by Liebowitz as a plumber's assistant. On the morning of the shooting, he went to Liebowitz' apartment since they planned to drive to work in Liebowitz' car. As Liebowitz was pulling his car out of its parking spot on the street, the defendant threw a bag of garbage at the windshield and attempted to drag Liebowitz out of the car. According to the owner of the house, there had been ongoing quarrels for several months between the defendant and Liebowitz about parking arrangements and about the disposal of garbage on the premises.

Cintron saw the defendant take a gun from his jacket pocket and shoot Liebowitz. Cintron ran into Liebowitz' apartment and retrieved a gun from the attic. He returned to Liebowitz' side, pointed the gun at the defendant and told him to get away. The defendant went inside his house. Cintron became afraid that he would be blamed for the shooting so he returned the gun to Liebowitz' apartment before the police arrived.

The defendant testified on his own behalf. He said that, after he threw the garbage bag at Liebowitz' car, he attempted to walk away but Liebowitz, who was behind the wheel of his car, "lunged" the car at him, hitting him twice. Then Liebowitz got out of the car with a gun in his hand and began to hit him with the gun. The defendant claimed that he had his hand on the gun and was pulling it out of Liebowitz' hand when he heard a shot, and the gun accidentally fired. Liebowitz and Cintron hit and kicked him until Liebowitz noticed blood on himself and sat down on the running board of his car. The defendant picked up the gun, placed it on a door ledge in his basement to keep it away from his children and returned to Liebowitz. The defendant's testimony concerning his subsequent contact with the police and his statements to them was essentially the same as that of Officer Rall.

The prosecutor did not cross-examine the defendant about his failure to tell the police that the shooting was an accident or that he acted in self-defense. During his summation, the prosecutor repeatedly remarked on the defendant's failure to tell the police at the scene of the crime about his claims that the shooting was accidental or justified and suggested that the defendant's explanation of the shooting was unworthy of belief for that reason. The prosecutor stated, inter alia, that the only reasonable explanation for the defendant's failure to say anything about an accident or self-defense was "because it never happened that way". The defendant's objections to these comments were overruled, and his application for a mistrial on this ground was denied.

On appeal, the defendant contends, inter alia, that he was denied a fair trial by the prosecutor's impermissible use of his pretrial silence during the redirect examination of Officer Rall and during his summation. We agree with the defendant that the prosecutor's conduct was improper in both instances.

II

Officer Rall testified on cross-examination that he did not recall any statements made by the defendant other than those he had previously testified to on direct examination. The prosecutor subsequently inquired, on redirect examination, "[s]o he [the defendant] never said to you anything about an accident or self-defense, did he?" This question was improper as the prosecutor was precluded from offering, as direct proof of the defendant's guilt, evidence of his pretrial silence with respect to the claims of accident and justification. Based on constitutional considerations, it has long been and continues to be the law in this State that a defendant's silence cannot be used by the People as a part of their direct case (see, People v. Basora, 75 N.Y.2d 992, 993, 557 N.Y.S.2d 263, 556 N.E.2d 1070; People v. De George, 73 N.Y.2d 614, 620, 543 N.Y.S.2d 11, 541 N.E.2d 11, see also, People v. Conyers, 49 N.Y.2d 174, 177, 424 N.Y.S.2d 402, 400 N.E.2d 342; People v. Rutigliano, 261 N.Y. 103, 184 N.E. 689). Regardless of whether the defendant's omission of exculpatory facts from his statements to the police could be used to impeach his credibility once he testified, the People could not attempt to use those omissions as direct proof of his guilt.

Nevertheless, the prosecutor's improper inquiry does not require a reversal of the defendant's conviction (see, e.g., People v. Arce, 42 N.Y.2d 179, 187, 397 N.Y.S.2d 619, 366 N.E.2d 279). The court sustained the defendant's objection, Officer Rall did not answer the question, and the jury was instructed that the question was "completely inappropriate" and that they were to disregard it.

III

The defendant was deprived of a fair trial, however, by the prosecutor's summation in which he argued that the defendant should not be believed because he failed to tell the police that the shooting was accidental or justified. In reaching this conclusion, we do not adopt the defendant's broad contention that any attempt to impeach his credibility on this ground constituted an impermissible use of his pretrial silence, as cross-examination of the defendant regarding these omissions would have been proper. Our decision is based on the narrower ground that the summation comments were fundamentally unfair because the defendant was not confronted with his omissions and given an opportunity to explain them.

The defendant contends that he maintained an effective, albeit not total, pretrial silence when confronted by the police and, therefore, constitutional protections and State rules of evidence preclude the use of his silence for impeachment purposes. The general rule is that, when a defendant remains silent prior to and after his arrest, his pretrial silence may not be used for impeachment purposes when he takes the stand, absent unusual circumstances (see, People v. De George, 73 N.Y.2d 614, 618, 543 N.Y.S.2d 11, 541 N.E.2d 11, supra; People v. Conyers, 52 N.Y.2d 454, 458, 438 N.Y.S.2d 741, 420 N.E.2d 933). Evidence of a defendant's pretrial failure to speak when confronted by the police "may be attributable to a variety of innocent circumstances that are completely unrelated to the truth or falsity of his testimony" (People v. Conyers, supra, at 458, 438 N.Y.S.2d 741, 420 N.E.2d 933). Moreover, the use of a defendant's postarrest silence for impeachment purposes may violate due process and the privilege against self-incrimination, as it is fundamentally unfair to promise the defendant that his silence will not be used against him and then attempt to draw an adverse inference from that silence (see, Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91). Because jurors may draw an unwarranted inference of guilt from the defendant's prior silence, the probative value of such evidence is outweighed by its potential for prejudice, and the use of a defendant's prior silence for impeachment purposes generally cannot be justified (see, People v. De George, supra, at 619, 543 N.Y.S.2d 11, 541 N.E.2d 11; People v. Conyers, supra, at 459, 438 N.Y.S.2d 741, 420 N.E.2d 933).

Nevertheless, a different rule pertains when a defendant, instead of invoking his right to remain silent, chooses to speak to the police about the crime. When a defendant voluntarily speaks to the police, neither due process nor the privilege against self-incrimination prohibits cross-examination of the defendant about his failure to inform the police at that time of exculpatory circumstances to which he later testifies at trial (see, People v. Savage, 50 N.Y.2d 673, 680, 431 N.Y.S.2d 382, 409 N.E.2d 858, cert....

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