People v. Tucker

• Decision Date: 20 September 2011
• Citation: 929 N.Y.S.2d 631,87 A.D.3d 1077,2011 N.Y. Slip Op. 06575
• Parties: The PEOPLE, etc., respondent,v.Henry TUCKER, appellant.
• Court: New York Supreme Court — Appellate Division

87 A.D.3d 1077
929 N.Y.S.2d 631
2011 N.Y. Slip Op. 06575

The PEOPLE, etc., respondent,
v.
Henry TUCKER, appellant.

Supreme Court, Appellate Division, Second Department, New York.

Sept. 20, 2011.

[929 N.Y.S.2d 632]

Lynn W.L. Fahey, New York, N.Y. (Kathleen Whooley of counsel), for appellant.Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Anne Grady of counsel), for respondent.REINALDO E. RIVERA, J.P., PETER B. SKELOS, SANDRA L. SGROI, and ROBERT J. MILLER, JJ.

[87 A.D.3d 1078] Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Collini, J.), rendered June 26, 2009, convicting him of attempted murder in the second degree (two counts) and attempted robbery in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is reversed, on the law and as a matter of discretion in the interest of justice, and a new trial is ordered.

The defendant's contention that he was deprived of a fair trial because the People were permitted to question him about his post-arrest silence, and to comment upon it in summation, is unpreserved for appellate review ( see CPL 470.05[2] ). Nonetheless, upon the exercise of our interest of justice jurisdiction, we conclude that the People's use of the defendant's post-arrest silence was error requiring a new trial.

Upon the defendant's arrest in connection with a shooting incident, he was read his Miranda rights ( see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694), and asked whether he was

[929 N.Y.S.2d 633]

willing to answer any questions. The defendant responded “no.” When a police officer subsequently told the defendant that he would be charged with two counts of attempted murder, the defendant stated that he was present at the shooting, but did not shoot anyone. No further statements were made. At trial, the defendant testified in his defense, admitting that he had been present during the incident, and identifying the shooter as his friend “Mustafa.” On cross-examination, the People asked the defendant multiple times whether he had told the police, after his arrest, that Mustafa was the shooter.

A defendant's post-arrest silence generally cannot be used for impeachment purposes ( see People v. Conyers, 52 N.Y.2d 454, 438 N.Y.S.2d 741, 420 N.E.2d 933; People v. Fox, 60 A.D.3d 966, 967, 876 N.Y.S.2d 98; People v. Mejia, 256 A.D.2d 422, 683 N.Y.S.2d 541; People v. Blacks, 221 A.D.2d 351, 633 N.Y.S.2d 793; People v. Spinelli, 214 A.D.2d 135, 139, 631 N.Y.S.2d 863). It is “fundamentally unfair” to assure a defendant that his silence will not be used against him and then to use that silence to impeach his subsequent trial testimony ( People v. Spinelli, 214 A.D.2d at 139, 631 N.Y.S.2d 863; see Brecht v. Abrahamson, 507 U.S. 619, 628, 113 S.Ct. 1710, 123 L.Ed.2d 353; Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91). Moreover, “an individual's pretrial failure to speak when confronted by law enforcement officials is of extremely limited probative worth” while “the risk of prejudice is substantial” ( People v. Conyers, 52 N.Y.2d at 458, 459, 438 N.Y.S.2d 741, 420 N.E.2d 933; see People v. Savage, 50 N.Y.2d 673, 677–678, 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 at 139–140, 631 N.Y.S.2d 863; People v. Haines, 139 A.D.2d 591, 592, 527 N.Y.S.2d 85). This is because an [87 A.D.3d 1079] individual's silence may be attributable to “a variety of innocent circumstances that are completely unrelated to the truth or falsity of his testimony;” such as “his awareness that he is under no obligation to speak or ... the natural caution that arises from his knowledge that anything he says might later be used against him at trial” ( People v. Conyers, 52 N.Y.2d at 458, 438 N.Y.S.2d 741, 420 N.E.2d 933).

While a defendant's credibility may be impeached with a significant omission when, instead of invoking his right to remain silent, he chooses to speak to the police about the crime ( see People v. Savage, 50 N.Y.2d at 678–679, 431 N.Y.S.2d 382, 409 N.E.2d 858; People v. Fox, 60 A.D.3d at 967, 876 N.Y.S.2d 98; People v. Prashad, 46 A.D.3d 844, 848 N.Y.S.2d 279; People v. Blacks, 221 A.D.2d 351, 633 N.Y.S.2d 793), here, as the People correctly concede, the defendant expressly invoked his right to remain silent. Nevertheless, the People contend that the defendant did not remain silent because, after he invoked his right to silence, the defendant denied culpability. “Here, however, [t]he defendant's mere denial of his involvement in the shooting was not tantamount to a waiver of the right to remain silent” that he had expressly invoked moments before ( People v. Santiago, 119 A.D.2d 775, 501 N.Y.S.2d 402; see People v. Torres, 111 A.D.2d 885, 886, 490 N.Y.S.2d 793; cf. People v. Savage, 50 N.Y.2d 673, 431 N.Y.S.2d 382, 409 N.E.2d 858). Indeed, as the Court of Appeals has acknowledged, “the State is denied the right to draw adverse inferences from the fact that a defendant has maintained an effective silence, even if something less than total ” ( People v. Savage, 50 N.Y.2d at 680, 431 N.Y.S.2d 382, 409 N.E.2d 858

[929 N.Y.S.2d 634]

[emphasis added]; see People v. Santiago, 119 A.D.2d 775, 501 N.Y.S.2d 402).

Unlike our dissenting colleague, we find this case to be squarely controlled by this Court's decisions in People v. Santiago, 119 A.D.2d 775, 501 N.Y.S.2d 402 and People v. Torres, 111 A.D.2d 885, 490 N.Y.S.2d 793, and not by the Court of Appeals' decision in People v. Savage, which presented different circumstances. In Savage, the defendant, upon his apprehension by the police and the administration of Miranda warnings, “volunteered, first, ‘I'm glad I'm caught—I'm tired’ and then went on to describe his role in the shooting” ( People v. Savage, 50 N.Y.2d at 677, 431 N.Y.S.2d 382, 409 N.E.2d 858). Specifically pointing out that the defendant had “responded to the opportunity to inform the officer of his involvement in the crime” in an “almost cathartic confessional,” and did so “in no conclusory form,” the Court of Appeals concluded: “the simple and undeniable fact is that the defendant here did not remain silent” ( id. at 678, 681, 431 N.Y.S.2d 382, 409 N.E.2d 858).

In contrast, in Santiago, the defendant spoke to the police upon his arrest merely to deny his involvement in the shooting, and in Torres, the defendant spoke to the arresting officer, denying his guilt and stating that he knew that one of the complainants[87 A.D.3d 1080] had recognized him ( see People v. Santiago, 119 A.D.2d at 776, 501 N.Y.S.2d 402; People v. Torres, 111 A.D.2d at 886, 490 N.Y.S.2d 793). In both cases, this Court determined that the defendants' statements were not “tantamount to the waiver of [the] right to remain silent so as to render the Conyers proscription [against use of post-arrest silence for impeachment purposes] inapplicable” ( People v. Santiago, 119 A.D.2d at 776, 501 N.Y.S.2d 402; People v. Torres, 111 A.D.2d at 886, 490 N.Y.S.2d 793). Rather, this Court concluded that the defendants had maintained an “effective silence, even if something less than total” ( People v. Santiago, 119 A.D.2d at 776, 501 N.Y.S.2d 402, quoting People v. Savage, 50 N.Y.2d at 680, 431 N.Y.S.2d 382, 409 N.E.2d 858; see People v. Torres, 111 A.D.2d at 886, 490 N.Y.S.2d 793).

Here, as in Santiago and Torres, and unlike Savage, upon his arrest and the administration of Miranda warnings, the defendant did not express his desire or willingness to speak to the police. When asked whether he would do so, the defendant responded “no.” Nor did he inculpate himself in the shooting or narrate the circumstances of the shooting to the police. He merely denied his role in the incident (although admitting his presence) in a general manner. In other words, despite his conclusory denial of involvement in the crime, the defendant maintained an effective silence. Moreover, having deliberately availed himself of his right to remain silent, the defendant's failure to give a more complete exculpatory statement to the police “may simply [have been] attributable to his awareness that he [was] under no obligation to speak” to the police, including to implicate his friend in a shooting, and to his knowledge that his decision not to speak would not be used against him at trial ( People v. Conyers, 52 N.Y.2d at 458, 438 N.Y.S.2d 741, 420 N.E.2d 933). Thus, the defendant's omission was of minimal probative value ( id. at 459, 438 N.Y.S.2d 741, 420 N.E.2d 933).

Furthermore, the dissent correctly observes that a defendant may not use his Miranda rights as a “shield against contradiction of his untruths” and, therefore, a defendant who provides testimony at trial that is inconsistent with a pretrial statement may be impeached with that statement, even where it was taken in violation of Miranda

[929 N.Y.S.2d 635]

( Harris v. New York, 401 U.S. 222, 224, 225–226, 91 S.Ct. 643, 28 L.Ed.2d 1, affg. 25 N.Y.2d 175, 303 N.Y.S.2d 71, 250 N.E.2d 349; see People v. Maerling, 64 N.Y.2d 134, 140, 485 N.Y.S.2d 23, 474 N.E.2d 231). However, this rule and its underlying rationale are inapplicable here because the defendant did not provide testimony at trial that was inconsistent with his pretrial statement ( cf. Harris...