People v. Conyers

• Decision Date: 21 December 1978
• Citation: 411 N.Y.S.2d 303,65 A.D.2d 437
• Parties: The PEOPLE of the State of New York, Respondent, v. Thomas CONYERS, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 303

411 N.Y.S.2d 303

65 A.D.2d 437

The PEOPLE of the State of New York, Respondent, v. Thomas CONYERS, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

Dec. 21, 1978.

Randolph Z. Volkell, New York City, of counsel (Diana A. Steele, New York City, with him on the brief; William E. Hellerstein and Martin Erdmann, New York City, attys.), for defendant-appellant.

Meredith Anne Feinman, New York City, of counsel (Robert M. Morgenthau, Dist. Atty.), for respondent.

Before KUPFERMAN, J. P., and BIRNS, FEIN, LANE and SANDLER, JJ.

FEIN, Justice:

Defendant Conyers appeals from a judgment convicting him following a jury trial on two counts of robbery in the first degree, two counts of robbery in the second degree, attempted assault in the first degree, possession of a dangerous weapon in the second degree and possession of a dangerous weapon in the third degree. The issue here is the propriety of the cross-examination by the prosecutor as to defendant's silence at the time of his arrest. Did such cross-examination infringe upon defendant's constitutional right to remain silent?

The evidence on behalf of the prosecution was that on August 28, 1975, defendant and co-defendant Saunders accosted Marion Dantzler and Grace Johnson in the street at gunpoint and directed them to enter a hallway at 328 East 126th Street in Manhattan. Defendants allegedly took money from Dantzler and a purse containing cash from Johnson. After tying up the victims, defendants fled. Dantzler, however, untied himself and ran from the building in pursuit of Conyers and Saunders. A tow truck operator, Frank Moreau, aided in the chase. It appears that Saunders fired a shot at Dantzler during the chase, although Moreau testified he thought that Conyers had fired the shot. Police officers who subsequently joined in the chase apprehended both Conyers and Saunders. A search of Conyers yielded the gun and Johnson's purse containing $92.70. Saunders was found in possession of $89.04 and a piece of white rope similar to that which had been used to tie up Dantzler. Defendants were taken to the precinct where Johnson and Dantzler identified them. Dantzler told the police that $250 to $300 had been taken. Johnson claimed about $200 had been removed from her purse.

The defense version of the events differed. Conyers testified that he had placed a bet with Dantzler the day before the alleged robbery. After ascertaining that he had won, he went to Dantzler's "numbers spot" on the third floor of 320 East 126th Street to collect. An argument ensued when Dantzler denied taking the bet. After about five minutes, Dantzler pointed to money on a table and told Conyers to go get it. Conyers saw a black pouch on the table. As he reached for it Dantzler drew a gun. Conyers testified that he knocked the gun out of Dantzler's hand and that the gun discharged as it hit the floor. Conyers picked up the gun and the pouch while Saunders took some rope and tied Dantzler's hands. Defendants left the apartment heading for Saunders' car. When they observed Dantzler chasing them, screaming that he wanted his gun back, Conyers and Saunders ran, pursued by Dantzler, until police officers apprehended them at 124th Street.

On cross-examination, the prosecutor inquired over objection as to whether Conyers had told the police that the gun was not his, that it was Dantzler who had drawn the gun and Conyers had taken it from Dantzler in self defense:

"Q. Did you, at any time, tell the police that the gun was not yours, that in fact Mr. Dantzler had drawn the gun on you and that you had taken the gun away from him more or less in self defense?

"A. I didn't say anything to the police officers.

"Q. Did you, at any time, tell the police that the money and the pouch, the money in the pouch was yours and that it was owed to you as a debt?

"A. No.

Conyers contends that the cross-examination concerning his silence when arrested was improper since it infringed upon his constitutional right to remain silent, his privilege against self-incrimination. He asserts that the court committed reversible error when it permitted, over Conyers' objection, inquiry by the prosecutor as to Conyers' silence when he was arrested. The district attorney contends that the inquiry was not directed against Conyers' exercise of his right to remain silent. The prosecutor's purpose was not to interfere with defendant's right to remain silent, but rather to demonstrate that defendant's story was a recent fabrication. The inquiry sought only to ascertain whether Conyers told the police that (1) the gun was not his; (2) he had taken it away from Dantzler in self-defense after the latter had drawn the gun on him; (3) the money in the pouch was owed to him in payment of a debt.

In her summation, alluding to the defense testimony, the prosecutor relied on Conyers' failure to speak at the time of his arrest to demonstrate that his story was a recent fabrication. The inquiry and summation plainly raised before the jury and called to its attention the fact that Conyers had remained silent at the time of his arrest and had not offered to the police the exculpatory account of the events as related by him upon the trial.

Such cross-examination and summation improperly impinged upon Conyers' right to remain silent. He had no obligation to speak. Under the circumstances of this case, it constitutes prejudicial error.

A defendant's silence at the time of his arrest may not be used against him in subsequent judicial proceedings (People v. Rutigliano, 261 N.Y. 103, 184 N.E. 689). Such silence at the time of arrest may not be used to impeach a defendant upon the trial (Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91). To hold otherwise would penalize a defendant for the exercise of his constitutional privilege to remain silent while under custodial interrogation. In People v. Arce, 42 N.Y.2d 179, 397 N.Y.S.2d 619, 366 N.E.2d 279, counsel for co-defendant Arce inquired of Camara as to whether Camara, at the time of his arrest, told the police about the shootings. After an objection to the question was overruled, Camara answered in the negative. However, subsequently, when the assistant district attorney posed a similar question to Camara, the trial judge sustained the objection and instructed the jury to the effect that when a person is under arrest he is not legally obligated to say anything to the police or to anyone else and that no unfavorable inference may be drawn against a defendant by reason of his silence. The Court of Appeals ruled that the question propounded by the prosecutor was "improper" even though unanswered, since it brought "to the attention of the jury" the fact that defendant Camara had been silent at the time of his arrest. However, although the Court found error in even asking the question, it was ruled to be non-prejudicial by reason of the clear and direct curative instructions to the jury which were given by the trial court. (People v. Arce, supra, 42 N.Y.2d at p. 187, 397 N.Y.S.2d at p. 624, 366 N.E.2d at...