People v. Basora

• Decision Date: 08 May 1990
• Citation: 557 N.Y.S.2d 263,75 N.Y.2d 992,556 N.E.2d 1070
• Parties: , 556 N.E.2d 1070 The PEOPLE of the State of New York, Respondent, v. Julio BASORA, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 263

557 N.Y.S.2d 263

75 N.Y.2d 992, 556 N.E.2d 1070

The PEOPLE of the State of New York, Respondent, v. Julio BASORA, Appellant.

Court of Appeals of New York.

May 8, 1990.

Domenick J. Porco, Scarsdale, for appellant.

Carl A. Vergari, Dist. Atty. (James A. Montagnino, Maryanne Luciano and Richard E. Weill, White Plains, of counsel), for respondent.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division, 151 A.D.2d 588, 542 N.Y.S.2d 691, should be affirmed.

Defendant has been convicted after a jury trial of criminal sale of a controlled substance in the first degree. The charges arose out of a transaction occurring in the parking lot of a motor inn in Tuckahoe, New York, where defendant's alleged agent, in the company of a police informer, sold drugs to undercover police officers while defendant looked on from a distance. Defendant and his agent were arrested in the parking lot when the sale was completed.

It was the People's theory that defendant, a major drug dealer, had masterminded the sale but had carefully insulated himself from it to avoid incrimination. To support this theory at trial, a police investigator, called by the People during their case-in-chief, testified that after he approached defendant and informed him he was under arrest, "[defendant] looked at me, kind of smiled" and then cooperated with the police as they handcuffed him and placed him under arrest. During summation the prosecutor commented on this and upon defendant's smiling in the courtroom during the trial. He invited the jury to infer from these acts that, although guilty, defendant believed he had sufficiently removed himself from the sale to avoid a finding of criminal liability.

Defendant had the constitutional right to remain silent at the time of his arrest (N.Y. Const., art. I, § 6; U.S. Const. 5th Amend.) and his exercise of that right at or after his arrest cannot be used by the People as part of their direct case (People v. Conyers, 49 N.Y.2d 174, 177, 424 N.Y.S.2d 402, 400 N.E.2d 342; People v. Rothschild, 35 N.Y.2d 355, 359, 361 N.Y.S.2d 901, 320 N.E.2d 639; People v. Rutigliano, 261 N.Y. 103, 106-107, 184 N.E. 689; see generally, People v. Lourido, 70 N.Y.2d 428, 434, 522 N.Y.S.2d 98, 516 N.E.2d 1212). We have also held, under our State rules of evidence, that silence in the face of police interrogation shortly after evidence of a crime is uncovered is usually ambiguous and its probative value minimal (People v. De George, 73 N.Y.2d 614, 618, 543 N.Y.S.2d 11, 541 N.E.2d 11; People v. Conyers, 52 N.Y.2d 454, 458, 438 N.Y.S.2d 741, 420 N.E.2d 933; see also, People v. Conyers, 49 N.Y.2d 174, 181, 424 N.Y.S.2d 402, 400 N.E.2d 342, supra; United States v. Hale, 422 U.S. 171, 176-177, 95 S.Ct. 2133, 2136-37, 45 L.Ed.2d 99).

In this case, the trial court erroneously allowed the People, as part of their direct case, to thwart defendant's Fifth Amendment right by attributing communicative value to his act of smiling (see, People v. Conyers, 49 N.Y.2d 174, 177, 424 N.Y.S.2d 402, 400 N.E.2d 342, supra). The People argue that the evidence of defendant's reaction to the police was not offered as a communication but as an affirmative act by defendant producing circumstantial evidence of consciousness of guilt, similar to flight from custody (see, People v. Yazum, 13 N.Y.2d 302, 304-305, 246 N.Y.S.2d 626, 196 N.E.2d 263; Richardson, Evidence § 167 [Prince 10th ed.]. A smile, however, can convey many different states of mind--for example, relief, bewilderment, nervousness, exasperation or happiness (see, People v. De George, 73 N.Y.2d 614, 618-619, 543 N.Y.S.2d 11, 541 N.E.2d 11, supra). Admission of such testimony as evidence of a consciousness of guilt was erroneous because the evidence was ambiguous and its probative value minimal. That is all the more so here because no statement was made to defendant that might evoke a response of any kind (see, People v. De George, 73 N.Y.2d 614, 620, 543 N.Y.S.2d 11, 541 N.E.2d 11, supra; People v. Allen, 300 N.Y. 222, 225, 90 N.E.2d 48; People v. Egan, 78 A.D.2d 34, 36, 434 N.Y.S.2d 55).

Defendant also contends that it was error for the prosecutor to comment on his deportment in the courtroom, particularly his smiling at times during the trial (see, United States v. Schuler, 813 F.2d 978, 979-982 (9th Cir.); United States v. Wright, 489 F.2d 1181, 1186 (D.C.Cir.))....