239 A.D.2d 938, People v. Mosby

Citation:239 A.D.2d 938, 659 N.Y.S.2d 610
Party Name:People v. Mosby
Case Date:May 30, 1997
Court:New York Supreme Court Appelate Division, Fourth Department
 
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Page 938

239 A.D.2d 938

659 N.Y.S.2d 610

PEOPLE of the State of New York, Respondent,

v.

Marcus MOSBY, Appellant.

Supreme Court of New York, Fourth Department

May 30, 1997.

Edward J. Nowak by Stephen Bird, Rochester, for Appellant.

Howard R. Relin by Elizabeth Clifford, Rochester, for Respondent.

Before DENMAN, P.J., and PINE, DOERR, BALIO and BOEHM, JJ.

MEMORANDUM:

Defendant was convicted of the murders of Willie Banks and Jason Witrsan in front of an apartment building. At trial, defendant raised the defense of self-defense. On direct examination, he testified that he felt he was in danger because someone had been killed in the same apartment from which he sold drugs, and there was a bullet hole in the door of the apartment. On cross-examination, the prosecutor attempted to impeach defendant by asking him whether he had so informed the police in his statement to them. Defendant contends that the prosecutor improperly questioned him concerning postarrest silence. We disagree. "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" (People v. Spinelli, 214 A.D.2d 135, 140, 631 N.Y.S.2d 863, lv. dismissed 87 N.Y.2d 1025, [659 N.Y.S.2d 611] 644 N.Y.S.2d 159, 666 N.E.2d 1073; see...

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