People v. Blacks

• Decision Date: 06 November 1995
• Citation: 221 A.D.2d 351,633 N.Y.S.2d 793
• Parties: The PEOPLE, etc., Respondent, v. Anthony BLACKS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 793

633 N.Y.S.2d 793

221 A.D.2d 351

The PEOPLE, etc., Respondent, v. Anthony BLACKS, Appellant.

Supreme Court, Appellate Division,

Second Department.

Nov. 6, 1995.

Daniel L. Greenberg, New York City (Judith Stern, of counsel), for appellant.

Charles J. Hynes, District Attorney, Brooklyn (Roseann B. MacKechnie, Linda Breen, and Ann Marie Modica, of counsel), for respondent.

Before MANGANO, P.J., and BRACKEN, SULLIVAN and ROSENBLATT, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Beldock, J.), rendered October 4, 1993, convicting him of assault in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant contends that reversible error took place when the prosecutor asked him during cross-examination why he did not tell a police officer that the victim had attacked him. As only a general objection was raised to this question at trial, the issue is not preserved for appellate review (see, People v. Bynum, 70 N.Y.2d 858, 523 N.Y.S.2d 492, 518 N.E.2d 4). In any event, the defendant's contention is without merit. Generally, a defendant's post-arrest silence cannot be used for impeachment purposes (see, People v. Conyers, 52 N.Y.2d 454, 459, 438 N.Y.S.2d 741, 420 N.E.2d 933). However, if a defendant speaks to the police and omits exculpatory information which he presents for the first time at trial, the defendant may be impeached with the omission (see, People v. Savage, 50 N.Y.2d 673, 679, 431 N.Y.S.2d 382, 409 N.E.2d 858, cert denied 449 U.S. 1016, 101 S.Ct. 577, 66 L.Ed.2d 475; People v. Spinelli, 214 A.D.2d 135, 631 N.Y.S.2d 863; People v. West, 212 A.D.2d 651, 622 N.Y.S.2d 572; People v. Harrison, 149 A.D.2d 434, 539 N.Y.S.2d 779). Furthermore, although the defendant's statement was not admissible as evidence-in-chief because it was obtained in violation of the defendant's Miranda rights, it was properly used for impeachment purposes (see, People v. Maerling, 64 N.Y.2d 134, 485 N.Y.S.2d 23, 474 N.E.2d 231; People v. Wise, 46 N.Y.2d 321, 413 N.Y.S.2d 334, 385 N.E.2d 1262; People v. Harris, 25 N.Y.2d 175, 303 N.Y.S.2d 71, 250 N.E.2d 349, aff'd 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1).

The defendant's remaining contention that the conviction should be reversed because of certain of the prosecutor's summation remarks is similarly unpreserved for appellate review (see, People v. Comer, 73 N.Y.2d 955, 540 N.Y.S.2d 997, 538 N.E.2d...