People v. Wheeler

• Decision Date: 29 January 1973
• Citation: 340 N.Y.S.2d 196,40 A.D.2d 348
• Parties: The PEOPLE, etc., Respondent, v. Gregory Raymond Joseph WHEELER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 196

340 N.Y.S.2d 196

40 A.D.2d 348

The PEOPLE, etc., Respondent, v. Gregory Raymond Joseph WHEELER, Appellant.

Supreme Court, Appellate Division, Second Department.

Jan. 29, 1973.

William E. Hellerstein and Robert Kasanof, New York City (James R. Sullivan, Rochester, of counsel), for appellant.

Thomas J. Mackell, Dist. Atty. (Charles M. Newell, Woodhaven, of counsel), for respondent.

Before SHAPIRO, Acting P.J., and GULOTTA, CHRIST, BRENNAN and BENJAMIN, JJ.

SHAPIRO, Acting Presiding Justice.

When Thomas F. Shore, Jr., the Assistant Chief Special Agent of the American Express Company, observed the defendant purchasing a ticket at the Eastern Airlines counter of the John F. Kennedy International Airport with the use of a credit card without checking his luggage, his suspicious became aroused.

Upon investigation, Shore discovered that the defendant had used a Bank Americard which had been reported stolen. Shore thereupon contacted the Port of New York Authority Police Department and Detective Shinkle of that Department placed the defendant under arrest when he admitted, after originally asserting otherwise, that he was not the person to whom the credit card had been issued. A search then followed of the defendant and his attache case, which revealed 40 credit cards issued in 30 different names, several thousand dollars' worth of travelers' checks and a license to operate an automobile.

At a pretrial Huntley hearing, Detective Shinkle testified that when advised of his rights the defendant indicated that he would not talk in the absence of an attorney. It was further established at the hearing that the defendant thereupon was placed in a detention cell without being interrogated and that about two hours later he asked to speak to Shore, who, with another American Express agent, and unaccompanied by any peace officers, spoke to the defendant, who then expressed his willingness to reveal information in exchange for lenient treatment and in the course of the conversation admitted his guilt.

At the trial, and in the presence of the jury, the court questioned Detective Shinkle with respect to the warnings given the defendant following his arrest and what the defendant had replied. The culmination of this line of questioning was as follows:

'THE COURT: And what else, if anything, did you say to him?

THE WITNESS: If he did not have an attorney available, he had the right to remain silent until he had had an opportunity to consult with one, and to have one present during any questioning by the police.

THE COURT: What did he say to that?

THE WITNESS: He replied that he understood.

THE COURT: Did he reply that voluntarily, or did you ask him that question?

THE WITNESS: I asked him did he understand.

THE COURT: Yes?

THE WITNESS: And he said yes.

THE COURT: And after that?

THE WITNESS: I asked him did he wish to make any statements without an attorney present. He said no, he would like to have an attorney present.

Q. Were those the words he used or do you recall?

A. I don't recall the exact words, but he said he would not answer any questions at that time without consulting an attorney.'

The defendant was convicted of four counts of criminal possession of stolen property in the second degree, two counts of criminal possession of a forged instrument in the second degree and possession of a forged license to drive an automobile.

The defendant argues that it was error for the trial court to adduce testimony before the jury showing that he had refused to answer questions in the absence of counsel, particularly as the court was aware of such refusal (from the Huntley hearing).

Although no objection was then raised to the court's questions, the Judge, Sua sponte, informed the jury that the defendant was within his constitutional rights in declining to answer and that no inference could be drawn therefrom. Under the circumstances, the introduction of this testimony was not prejudicial error.

Cases such as People v. Orgovan, 14 A.D.2d 482, 217 N.Y.S.2d 740, People v. Christman, 23 N.Y.2d 429, 297 N.Y.S.2d 134, 244 N.E.2d 703, People v. Finney, 39 A.D.2d 749, 332 N.Y.S.2d 82, and People v. Travato, 309 N.Y. 382, 131 N.E.2d 557, are not in point. In People v. Orgovan (supra), the Appellate Division, Fourth Department, held that prejudicial error was committed when the Trial Judge, in refusing to strike an officer's testimony of the defendant's refusal to answer, commented, 'It is acceptable to interpretation one way or the other,' thereby permitting the jury to speculate that the refusal to answer could lead to an inference of guilt.

Similarly, in People v. Christman (supra), there was a reversal because of the prosecutor's comment in summation that the defendants' refusal to answer created an inference that their defense of alibi was false. An objection was overruled on the ground that the prosecutor's remarks were 'fair comment'.

In People v. Finney (supra), we reversed a conviction of defendant Ivy Pattavino as the result of the repeated elicitation of testimony by the prosecutor that this defendant had refused to answer questions at the time of her arrest. The trial court denied a request that the jury be instructed that defendant Pattavino had a right to remain silent and that such silence could not create an inference against her.

In People v. Travato (supra), there was a reversal because two witnesses were permitted to testify concerning the defendant's refusal to answer questions and the language of the charge to the jury implied that such refusal could be regarded as evidence of guilt.

The overriding principle violated in the cited cases is that no inference may be drawn from silence (see People v. Rutigliano, 261 N.Y. 103, 107, 184 N.E. 689). That principle was not violated in this case. The testimony came in with regard to the defendant's understanding of the Miranda warnings. No objection was made thereto, no further references were made to such testimony save for a passing reference thereto in the charge, to which reference no exception was taken, and the court affirmatively informed the jury that no inferences could or should be drawn from the defendant's silence (cf. People v. Bianculli, 9 N.Y.2d 468, 215 N.Y.S.2d 33, 174 N.E.2d 717).

In any event, the full confession given to Shore shortly thereafter rendered harmless any prejudice resulting from the testimony that the defendant had wished to remain silent.

As a further citation of error, it is contended that various portions of the prosecutor's summation and of the charge to the jury amounted to unfair comment upon the defendant's failure to testify. In the course of his summation, the prosecutor, in discussing the elements of 'knowing possession', said, 'And knowingly is stated in the indictments regarding the criminal possession charges. But we cannot go into a man's mind. That's beyond human capability without him speaking or saying anything. We can't see into his mind. So we have to go by what the facts show.' No objection was made to this statement; and its effect, if any, was immediately overcome when Judge Balsam, at the outset of his charge, instructed the jury that the defendant had the right to stand mute and that his failure to testify could not be considered as evidence of, or give rise to an inference of guilt. He then added that the jurors could not consider what the defendant might have said had he taken the stand. Again, on three occasions the jury was instructed that the presumption arising from the possession of recently stolen goods stood unless rebutted by the defendant, but no objection was taken to the charge in this regard.

A review of some of the leading cases in the area of comment upon a defendant's failure to testify indicates that reversal is not warranted in this case. In People v. Fitzgerald, 156 N.Y. 253, 50 N.E. 846, the Court of Appeals noted that it is never necessary to add any explanation to the statutory language that no presumption can result against a defendant from his failure to testify. In Fitzgerald, the defendant was prejudiced by the trial court's repeated statements that the jury could not assume that the defendant would have denied the charge had he taken the stand. A comment of that nature was, of course, much more serious than the Trial Judge's general admonition in this case not to consider what the defendant might have said had he testified.

In People v. Forte, 277 N.Y. 440, 14 N.E.2d 783, the Court of Appeals condemned an instruction that although no unfavorable inference could be drawn from the defendant's failure to testify, the jury could consider most strongly against him those facts and circumstances which he might have controverted or explained were he innocent. The charge to the jury was held to have, in effect, sanctioned a presumption against the defendant for his failure to testify.

In People v. McLucas, 15 N.Y.2d 167, 256 N.Y.S.2d 799, 204 N.E.2d 846, the defendant's privilege against self-incrimination was held violated by the Trial Judge's repeated improper stressing to the jury that a police officer's testimony that the defendant had denied his guilt when arrested did 'not take the place of sworn testimony from this witness chair' (p. 171, 256 N.Y.S.2d p. 801, 204 N.E.2d p. 847).

In People v. Arthurs, 3 A.D.2d 966, 161 N.Y.S.2d 971, the Appellate Division, Fourth Department, held that the statement that the defendant's failure to testify was his own 'business' impaired the rule that no presumption can arise from the defendant's failure to testify.

In People v. Avalone, 255 App.Div. 283, 7 N.Y.S.2d 410, the Appellate Division, First Department, reviewed the following charge (p. 284, 7 N.Y.S.2d p. 411):

"The law is that the defendant can stand mute. He does not have to take the stand; he does not have to testify, and that may not be used against him, Except with respect to the law which I have charged you about, as to recent possession. If you find that he had...