People v. Hendricks

• Decision Date: 19 August 1996
• Citation: 646 N.Y.S.2d 845,222 A.D.2d 74
• Parties: The PEOPLE, etc., Respondent, v. John HENDRICKS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 845

646 N.Y.S.2d 845

222 A.D.2d 74

The PEOPLE, etc., Respondent, v. John HENDRICKS, Appellant.

Supreme Court, Appellate Division Second Department.

Aug. 19, 1996.

Kunstler & Kuby, New York City (Ronald L. Kuby, of counsel), for appellant.

Denis Dillon, District Attorney of Nassau County, Mineola (Tammy J. Smiley and John F. McGlynn, of counsel), for respondent.

Before BALLETTA, J.P., and MILLER, O'BRIEN and COPERTINO, JJ.

BALLETTA, Justice Presiding.

Appeal by the defendant from a judgment of the County Court (Joseph C. Calabrese, J.), rendered June 17, 1994, in Nassau County, convicting him of attempted rape in the first degree, upon a jury verdict, and imposing sentence.

The defendant was convicted of attempted rape in the first degree based on a November 19, 1992, incident during which the defendant attempted to rape his live-in girlfriend. On appeal, the defendant claims that the Trial Court committed reversible error when it permitted the People, during their direct case, to introduce police testimony that the defendant, after being advised of his Miranda rights, indicated that he would give an oral statement but that he would not sign a written statement and that he thereafter gave an oral statement to the police. We disagree and affirm the judgment of conviction.

During the course of the trial, the People, on their direct case, presented the testimony of Detective Kenneth Diehm who had interviewed the defendant at the police station after the defendant's arrest. Detective Diehm testified as follows:

"Q: Detective, after the question on the card 'do you understand' where the word 'yes' appears, who wrote the word 'yes'?

"A: The defendant.

"Q: And the next question, 'Now that you understand, are you willing to answer questions before talking with a lawyer or having one present', who wrote the word 'yes' after that question?

"A: The defendant.

"Q: There is a signature just under that. Whose signature is that?

"A: The defendant's signature.

"Q: And when did he sign the card?

"A: After I read him his rights.

"Q: All right. Detective, after you read him his rights, did you then have an oral conversation with him?

"A: Yes, I did.

"Q: All right. Would you please tell the members of the jury what the defendant said to you and what you said to him.

"A: I told him I would like to take a detailed statement from--".

At this point, the defense counsel objected, and at a sidebar the following took place:

"MR. CROMWELL [defense counsel]: I am tempted to move for a mistrial. With this detective's experience, what he just said was absolutely unconscionable. He knows very well the defendant has no obligation to give him a detailed written statement.

"Now we know because of this past hearing that he asked for a detailed written statement and my client refused to give him one. That has no place in this trial. There should be no testimony at all about my client's refusal to give a detailed written statement because he has an absolute right not to say anything, so if the jury hears he refused to give a written statement, that's prejudicial and impermissible.

* * * * * *

"So he can testify about the oral statement, but this witness should have been instructed, and I am really shocked that that wasn't done, and I would like to believe that it was done but I am more shocked about the testimony that just came forth here, so I would ask that there be an instruction that the detective be instructed not to testify as to that, if we may take a break for Mr. Pincus to say that to the detective.

"But as to what the oral statement is, that, of course was held admissible at pretrial hearings, so that's really the only thing that I think can come in.

"MR. PINCUS [prosecutor]: Well, Judge, I have certainly told this witness that the only statement that's allowed to come in on direct examination is the statement that appears on the 85A, and he was instructed not to testify as to what's on the long form.

"But my question to him was what were the circumstances surrounding the statement that was given, and I think it's proper that he discuss what was around the statement that was given, not that he wrote out a long statement and the defendant refused to sign it, but asking him: Do you want to give me a written statement: No, I'll talk to you, but I am not signing anything.

"THE COURT: Yes, the circumstances surrounding it are proper. The objection is overruled".

The prosecution then elicited the following from Detective Diehm in front of the jury:

"Q: You can answer the question. What did you say to him and what did he say to you?

"A: I said to him: I would like to take a detailed written statement as to what transpired at the house this morning, and he told me, he said: I'm not going to sign anything else. He said: I'll talk to you but I'm not going to sign anything else.

"Q: All right. Did the defendant tell you--

"MR. CROMWELL: Again, your Honor, for the record, you have my objection to that.

"THE COURT: The objection was overruled."

The only other reference to the defendant's refusal to provide a written statement to the police occurred during the People's cross-examination of the defendant who had taken the stand on his own behalf, as follows:

"Q. And when you spoke to Det. Diehm, Detective Diehm gave you your rights, isn't that correct?

"A. He gave me a piece of card, threw it down on the table, yes, the rights.

"Q. And what did he do with the card?

"A. He said: Do you want to read this and then write a statement? And I told him: I am not in a position to write a statement."

There was no objection to this cross-examination.

It is well established that a defendant has a constitutional right to remain silent at the time of his or her arrest (N.Y. Const. art. I, § 6; U.S. Const. 5th Amend.) and that his or her exercise of that right to remain silent at or after his or her arrest may not be used by the People as part of their direct case (see, Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106; People v. Basora, 75 N.Y.2d 992, 993, 557 N.Y.S.2d 263, 556 N.E.2d 1070; People v. Pavao, 59 N.Y.2d 282, 292, 464 N.Y.S.2d 458, 451 N.E.2d 216; People v. Von Werne, 41 N.Y.2d 584, 588, 394 N.Y.S.2d 183, 362 N.E.2d 982; People v. Rutigliano, 261 N.Y. 103, 184 N.E. 689). As the United States Supreme Court has stated, "it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation" and that the prosecution may not therefore "use at trial the fact that he stood mute or claimed his privilege in the face of accusation" (see, Miranda v. Arizona, 384 U.S. 436, 468, n. 37, 86 S.Ct. 1602, 1624, 16 L.Ed.2d 694).

The defendant argues on appeal that the admission of Detective Diehm's testimony violated his fundamental and basic constitutional right to remain silent. We disagree. The defendant's argument misapprehends both the nature and context of his statement as well as the applicable case law.

In People v. Von Werne (supra), the Court of Appeals held that a police officer's testimony that the defendant had initially answered his questions but that he subsequently stated that he "wouldn't talk any longer, he refused to talk to me" (People v. Von Werne, supra, at 587, 394 N.Y.S.2d 183, 362 N.E.2d 982), was error, explaining:

"It has long been the law in this State that the silence of a defendant, after arrest, cannot be used against him. (E.g., People v. Rothschild, 35 N.Y.2d 355, 359 [361 N.Y.S.2d 901, 320 N.E.2d 639]; People v. Al-Kanani, 26 N.Y.2d 473, 478 [311 N.Y.S.2d 846, 260 N.E.2d 496]; People v. Rutigliano, 261 N.Y. 103 ; see also, United States v. Hale, 422 U.S. 171 [95 S.Ct. 2133, 45 L.Ed.2d 99].) True, this defendant was not under formal arrest when interrogated in his own residence by the police officer. Yet the absence of a formal arrest is not dispositive here. A defendant in a criminal case has the right, granted by both the Federal and State Constitutions, to refuse to incriminate himself. (U.S. Const., 5th, 14th Amdts. [sic]; N.Y. Const., art. I, § 6.) The point of the cases is that a defendant's exercise of his constitutional right may not be used against him by the prosecution. (Griffin v. California, 380 U.S. 609, 615 [85 S.Ct. 1229, 1233, 14 L.Ed.2d 106].) The only apparent purpose of informing the jury that the defendant had elected to remain silent during police interrogation is to permit them to infer consciousness of guilt. The use of such proof for this, its only purpose, is not permissible. (People v. Al-Kanani, supra.)" (People v. Von Werne, supra, at 587-588, 394 N.Y.S.2d 183, 362 N.E.2d 982).

Similarly, in People v. Scalerico, 140 A.D.2d 386, 527 N.Y.S.2d 567, a police officer testified that after the defendant had made certain oral statements, the defendant was asked if he would give a written statement and that although the defendant had initially agreed to the request, he subsequently refused to give a written statement. In reversing and remitting on other grounds, this court held that on retrial, the testimony concerning the request of the defendant to make a written statement and his later refusal should not be elicited by the prosecutor (see People v. Scalerico, supra, at 388, 527 N.Y.S.2d 567).

The crucial factor in both People v. Von Werne (supra) and People v. Scalerico (supra) is that the defendant's refusal to talk further (People v. Von Werne, supra) or to provide a written statement after making an oral one (People v. Scalerico, supra) clearly evidenced the defendant's exercise of his right to remain silent. In both cases, the defendant's statement, when viewed within the context in which it was given, indicated a clear desire on behalf of the defendant not to answer any more questions and not to talk to the police any further.

Thus, both People v. Von Werne (supra) and People v. Scalerico (supra) are in accord with the well established principle that a defendant may exercise his or her right to...