*1 [31 641] NE3d 8 NYS3d Respondent, v Paul State York, New Appellant. Williams, 19, 2015;
Argued February April 7, decided *2 POINTS OF COUNSEL (Piotr Legal Society, Syracuse
Hiscock Aid Banasiak of counsel), appellant. for I. trial court committed reversible by allowing question error on comment a police witness about the fact that Paul Williams remained by refusing provide limiting (People silent, and instruction. People v Adessa, 677; Christman, 89 NY2d v 429; 23 NY2d People Rutigliano, People Bianculli, v 468; 9 NY2d v 261 NY People George, Doyle 103; v 614; Ohio, De 73 NY2d v 426 US People People Savage, 610; v Basora, NY2d 992; v 50 NY2d People People Moxley, 673; 951.) v Hunt, 891; 18 AD3d v 138 AD2d during jury
II. The trial court committed reversible error
by refusing
permit
pe-
selection
Paul Williams to
exercise
remptory challenge. (People
People
v McQuade,
284;
110 NY
v
Roberts,
Alston,
AD2d 148;
519;
*3
People
People
Jabot,
AD3d 1079;
335;
93
v
57
Harris,
NY2d
v
People
People
Leakes,
484;
75;
284 AD2d
v Smith, 278 AD2d
v
People
Luciano,
499;
10 NY3d
Quinones,
208;
v
222 AD2d
538.)
People Rincon,
v
40 AD3d
III. The
conviction
first-
degree sexual
abuse must
reversed because the trial court
improperly charged
jury
respect
theory
to a
that was
particulars. (People
not
in the
reflected
indictment and
bill
v
Grega,
People
People
William J. District P. counsel), respondent. Maxwell and Misha A. Coulson of for I. by a Defendant was not denied fair trial that al jury grand compare jury testimony lowed the police. by (People Gray, 10; initial interview v 86 NY2d People Belge, People Tonge, 60; v 41 838; NY2d v 93 NY2d People Berghuis Thompkins, Bowen, 915; v 50 v NY2d 560 US 370; Goldman, 501; United States v 563 F2d v Vitali United People Savage, States, 121; 673, F2d v 50 383 NY2d 449 US People 1016; Harris, v 401 175, 222; 25 NY2d US Jenkins v 231.) improperly Anderson, 447 US II. The trial court did not prevent exercising peremptory challenge. from (People Gray, People 10; v Chestnut, 606; NY2d v 19 NY3d People People Patterson, 288; v v Becoats, 39 NY2d People People 643; Alston, v 519; Colville, 88 NY2d v 20 NY3d People People Ferguson, McGrew, v 383; 67 NY2d 20; v People People v 1486; AD3d Rosario-Boria, 110 1170; v AD3d 1079.) support a find- does not III. The record Jabot, 93 AD3d ing in the first convicted of sexual abuse that defendant was (People alleged theory degree v in the indictment. on a People Grega, 407; Smalls, 55 NY2d 489; 72 NY2d 476.) Turner, OF THE COURT
OPINION J. Fahey, appeal in their case-in- references
This concerns inter- custodial to defendant’s selective silence chief rights rogation, his Miranda had waived after defendant speak police. agreed of state evi- hold, We as matter dentiary defendant’s selective law, that evidence of a part generally may their case- used not be admis- infer the defendant’s in-chief, either to allow credibility impeach of the defendant’s or to sion the defendant has testified. version of events when I boyfriend, August 2008, defendant, the victim’s former
On According unannounced. arrived the victim’s testimony, gained entry the victim’s trial raped apartment by then in the means of a ruse and apartment; the bathroom she testified bathroom struggled After with defendant. sink crashed to the floor as she *4 apartment, police, called the victim defendant left the custody. inter- The who taken into detective defendant was rights. Defend- advised him his Miranda viewed defendant rights and that he was ant stated that he understood those sign willing speak he detective, but refused with Miranda form. ensuing during De-
Defendant evasive interview. was victim, detec- but when the fendant admitted that knew questions specific incident, defendant tive asked him about repeated questions respond or the detective’s either victim, him. whether he had sex with the back to When asked police transporting not answer. While the were defendant did arraignment, he had admitted that day. in the kitchen earlier that been victim’s left breast from the victim’s shoulder and Saliva taken addition, the victim had a bruise matched defendant’s DNA. body, and scratches on her the sink her bathroom was from broken off the wall. charged rape degree,
Defendant in the first bur- glary degree, degree, in the second sexual in the abuse first rape degree, impersonation in the third and criminal in the Huntley degree. hearing, County first After a Court denied de- suppress police. motion fendant’s his statements to the prosecutor jurors during opening At told the state- they grand jury testimony, ments that would hear defendant’s during which defendant asserted he and the victim' had day sex in consensual question. the bathroom of her on prosecutor jury further that the stated would be compare grand jury testimony able to with defend- ant’s statements to the detective interview, custodial outright denying which the characterized as “not happened, ha[d] admitting what but not to it either.” During opening statement, defense counsel told the right speak that defendant had a to refuse to to the against that his silence should be used him. Defense objected part prosecutor’s opening counsel later referring postarrest County to defendant’s silence. Court issue refused to a curative instruction. The court reasoned adequately responded prosecutor’s defense counsel had opening opening statement in her own statement. permitted
The court the detective who interviewed de- testify, objection, fendant to over defense counsel’s follows: “[THE you PROSECUTOR]: specifically Did ever [defendant] [the victim]? ask if he had sex with “[THE DETECTIVE]: Yes. response?
“Q. And what was his
“A. He didn’t answer.
“Q. He didn’t answer?
“A. No. deny
“Q. Did he . it? . .
“A. No.” Later direct court admitted de- *5 jury testimony grand fendant’s in evidence. Defendant not testify present any at trial and did not evidence. closing
During arguments, again noted defend- respond ant’s failure to when the detective asked defendant no counsel made with the victim. Defense had sex whether closing prosecutor’s objection portion specific to this light People argued argument. fail- of defendant’s that in The grand question, respond to that defendant’s ure to testimony to be consensual should deemed that the sex was by after he concocted and a fabrication incredible body his DNA. the victim’s matched of sexual abuse learned that the saliva on jury subsequently in convicted defendant The imper- rape degree, degree, criminal third first degree. in the first sonation County judgment Appellate Court’s Division modified
The pertinent respects modified, here as affirmed and, that are 2013]). (107 [4th Dept determined that AD3d The Court People’s regarding use his selec- defendant’s contention preserved respect prosecutor’s with tive silence was (see testimony opening id. at statement and the detective’s 1393). conten- The further determined that defendant’s Court closing argument prosecutor’s respect was un- with to the tion preserved, part of defendant’s contention but addressed id.). (see justice On in the a matter of discretion interest Appellate merits, prosecutor concerning that the comments Division held postarrest dur- silence defendant’s improper ing opening closing and that statements were County admitting portion of erred in into evidence that Court testimony concerning selective the detective’s (see Appellate Division further id. “any concluded, were be- however, that such errors harmless (id. yond ted]). quotation [internal omit- marks reasonable doubt” (22 Judge appeal granted A Court defendant leave to of this [2014]). We now reverse. II agree preliminary Appellate Divi- matter, As a we regarding use of contention sion prosecutor’s open- preserved as to the his selective silence testimony, ing but as to statement and detective’s closing Consequently, prosecutor’s do not statement. we argu- challenge closing prosecutor’s consider defendant’s ment. evidentiary principle law
It is well-established state generally pretrial inadmis- of a defendant’s silence is [1933]). Rutigliano, 261 NY 106-107 sible
191 (52 People Conyers [1981]), NY2d we 454 extended that principle present that, and held absent circumstances not in preclude “our State rules of evidence a de use of (id. pretrial impeach testimony” fendant’s silence to his trial at 457) generally . This was so because a defendant’s silence is ambiguous extremely {id. probative and “of limited worth” at 458) many why . noted We that there are reasons an individual may speak police wholly choose not to that are unrelated to veracity testimony, his or trial but that there is a jurors might substantial risk that “construe such as an silence guilt” admission (id. . . . draw an unwarranted inference of 458-459). (73 subsequently George People We held in v De NY2d [1989]) Conyers applied that our in decision to a defendant’s “pretrial” “postarrest” silence and was not limited to 619-620). {id. at that, We reiterated as a matter of state evi- dentiary People generally may law, the not use of de- pretrial fendant’s impeach on silence either their direct or case 617-618). testimony {see the defendant’s trial id. at may There be a rare set of circumstances in which is permissible People for the to a refer defendant’s silence dur- ing general evidentiary However, their case-in-chief. principles Conyers George in established and De remain in place today: generally may People not refer to a defend- ant’s silence case, and, their direct cir- absent unusual may cumstances, not use a defendant’s silence to impeach testimony. his or her trial
We have twice held such unusual circumstances existed. (35 [1974]), In v Rothschild the defendant, larceny by officer, was accused of extortion for his threatening family conduct in members the victim’s in order money trial, obtain from the victim. At testi the defendant agreed accept money fied that he had from the victim or bribery. cross-examination, der to arrest the for victim On prosecutor any elicited from defendant that he had not told superior sup after officers his arrest about the victim’s posed inquiry bribe offer. We held such on cross- permissible duty examination was because defendant had superior any light and, to inform his officers of bribe of that duty, speak “patently his failure to inconsistent with the (id. defense asserted” (50 People Savage [1980], NY2d 673 cert denied 449 US [1980]), charges the defendant was on arrested
intentionally shooting an altercation. de- the victim arresting he had shot the officer that confessed to fendant During the victim had testified that the defendant victim. discharge gun attempted was in- him and that the rob cross-examination, asked de- On advertent. arresting officer he had told the fendant whether attempted held, matter of rob We as a state him. victim *7 permissible evidentiary questioning such was law, that conspicuous impeachment omission of because defendant’s voluntary exculpatory in to facts his statement these testimony trial was a recent fabrica- to show that his tended recognized Savage, however, to in that “reference the We tion. omission, substantively negative nature, not its could serve
because of prove in commission of evidence chief to the as (id. 679-680). crime” at the People present circumstances The contend that the Savage analogous present in and are to those Roths this case Conyers general principles that articulated child, and the disagree. George De do not control. We and fundamentally Savage and is from Roths- This case different conspicuous People cases, the used omissions child. In those police during to the defendants’ statements cross- from impeach of in order to the cred- defendants, examination ibility testimony provided by exculpatory the defendants part by People introduced, as Here, contrast, at trial. regarding failure case-in-chief, evidence defendant’s their interrogation during he that tell the detective custodial case-in-chief, victim had consensual sex. Later their grand testimony, People also introduced defendant’s during which insisted that he and the victim had People’s sex. The of defendant’s silence consensual use common-law our rules of their case-in-chief therefore violated 618). George, as De 73 NY2d at Inasmuch defend- testify did not there is no need for us to consider ant present in whether unusual circumstances such age those Sav- People use allowed the de- and Rothschild would have impeach him if had fendant’s selective silence he testified (see Conyers, they People essentially impeaching
The claim that were grand jury testimony defendant’s because evidence defend- necessary ant’s omission to demonstrate that the version was grand jury was false. The also of events told grand jury testimony that the admission contend helpful presented defendant, because testimony jury, testify defendant “would have had put jury.” in order to claim consensual sex before People may arguments These are without merit. The they
introduce evidence that deem favorable to defendant on impeach their direct evidence, case their also on direct case, with evidence of defendant’s silence. although
Furthermore, evidence of defendant’s silence was during any part People’s inadmissible direct purpose impeach claim that their towas grand jury testimony they is weakened the fact they introduced evidence of defendant’s silence intro- before grand jury testimony. Thus, duced his at the time that detective testified that defendant neither nor admitted denied having contrary victim, sex with the there was no version of impeach. jurors improper events risk drew an greater. inference of was therefore even depart principles
There is need no from the articulated in George Conyers merely De because defendant’s silence *8 partial. only here was If silence could an answer, constitute simply by asking then the could meet their burden question. Moreover, evidence of a defendant’s selective silence extremely probative (Conyers, of “is 458). limited worth” 52 NY2d at agrees speak police
A defendant who to the but refuses questions may legitimate answer certain have the same or refusing innocent reasons for to answer as a who defendant re- (see id,.). speak police fuses to at all Furthermore, the potential prejudice risk from evidence of a defendant’s selec- greater tive even silence is than the risk to a defendant who totally likely chooses to remain silent. Jurors are more questions construe a defendant’s refusal to answer certain as guilt willingly an admission if the has otherwise police inquiries. ambiguous answered other The nature and probative limited worth aof defendant’s silence selective is outweighed by prejudice the substantial risk of to the defend- (see 459). ant from admission of such evidence id. at Evidence generally may a of defendant’s selective silence therefore not People during may be used the their case-in-chief and only impeachment” “a used as device for of a defendant’s trial testimony (Savage, in limited and unusual circumstances 459). Conyers, at 680; NY2d see NY2d at People’s
The use of defendant’s selective in this case improper opening for statement, another reason. In her jury did admit or that defendant not told spoke deny Further- the detective. when he accusations prosecu- detective, examination of more, direct establishing only testimony elicited tor victim, sex with the whether he had answer when asked using deny de- In addition to did not either. also that he but purported impeachment device silence as fendant’s selective jury invited the also their direct deny guilt from defendant’s failure to an infer admission jury impermis- made such an The risk that accusations. here, defendant where, is inference substantial sible selectively questions others, but not some answered any provide The curative instruction. the court refused prosecutor’s regarding defendant’s selective silence comments during opening improper, and the court erred statements were testimony concerning allowing selective silence testimony allowed the as the comments and inasmuch guilt” (Conyers, to “draw an unwarranted inference 459). People’s light holding use of our evidentiary prin- our common-law selective silence violated ciples, defendant’s contention we need not address violated the State and use of his selective silence also Conyers, George, at 618; De Federal Constitutions 52 NY2d at
m any People contend, alternative, error was applicable to nonconstitutional harmless. Under standard proof errors, an is if the of defendant’s is error harmless significant probability overwhelming no that the and there is *9 jury acquitted the error not occurred would have defendant had (see [1975]). People Crimmins, 230, 36 NY2d v that as a matter
We conclude the errors are not harmless assuming law. Even that the evidence of defendant’s is jurors overwhelming, significant probability is that the there a acquitted if the errors not occur. For would have above, discussed evidence of defendant’s selective reasons significant highly prejudicial, risk that silence is and there is a jurors failure to answer the detective’s deemed defendant’s question had sex the victim to be an as to whether he provide guilt. Moreover, admission of court refused to after referred to curative instruction opening statement. defendant’s selective silence place significance dissenting We do not much as our col- leagues response on defendant’s to the detective (see 196). interrogation dissenting op Although custodial at it is anything true that detective had said to defendant breaking “about a door,” down told detective defendant that why you’re today alleged being “the reason here is that it’s you your way [the apartment victim’s] forced into and had sex responded, “Honestly, you just with her.” Defendant do I think just broke down the door?” Inasmuch as the detective had told forcing way that he was accused of his into the apartment, response victim’s was consistent with a denial of that accusation and with his later admission that he day. inwas the victim’s Furthermore, defend- response agreement ant’s was in with the version of events grand jury: that he later told the the victim had ultimately apart- consensual sex after she allowed him into her respectfully disagree dissenting ment. We therefore with our colleagues response that defendant’s to the detective “revealed knowledge breaking entering aspect his of the crime knowledge only at a time when such could have from flowed participation response in the offense” and that his was evi- guilt (dissenting op dence of his consciousness- of response just Rather, defendant’s to the detective was as com- patible awith denial of the accusation that he had forced his way apartment. into the victim’s We therefore hold that the er- required. ror was not harmless that reversal is light of our decision that there be a must new we remaining have no need to address defendant’s contentions. Accordingly, Appellate order Division should re- versed and a new trial ordered. (dissenting). agree majority J. I with the Abdus-Salaam, permitting the trial court erred in to adduce upon, partial postarrest of, and comment evidentiary case-in-chief, silence on their for state barred law (see majority op
the see 190-194; admission also that evidence at 188, George, 614, [1989]; De 73 NY2d 617-620 [1981]). People Conyers, major- 457-459 As the ity’s excellent and learned discussion of our case in this law 190-192), only majority op area reveals the most unusual justify post- circumstances will admission of defendant’s arrest silence on the direct and no such circum- *10 (see majority majority However, stances exist here. unlike the 196 194-195),
op on account of error was harmless I find that the at proof against overwhelming quality and the of the by prejudice of silence. the evidence his occasioned limited the While harmless error may acknowledge the differ on reasonable minds I my disagreement by presented issue this subject prompts majority me to nonetheless on this with respectfully dissent. (see majority op rightly points majority 190- out
As the proba- 193-194), postarrest has limited silence 191, evidence prejudicing improperly a defendant value and risks tive causing jurors speculate remained the defendant to (see Conyers, guilt 52 NY2d his or her an effort hide silent police silence in the face of But, here, defendant’s questioning, evidence, excluded from should have been which any properly scarcely ev- admitted more harmful than the was idence breaking knowledge his that he had revealed knowledge entering aspect such at a time when crime only participation in the offense. have flowed from could girlfriend police regard, and, told the day jury, crime, later, the that on the open police pretended in order to convince her to be officer opened apartment. she the door and saw door When pushed open again, it it defendant, she tried close but apartment, point way at which she succumbed force his into the physical Dur effort oral entreaties. a combination of his to ing police did defendant, the not disclose their interview with police, Nonetheless, him. defendant told the this information to “Honestly, you just At think that I broke the door down?” do hearing, Huntley admissible, ruled this statement the court regardless jury properly received therefore they postarrest learned of defendant’s whether should have jury surely Having would statement, heard that silence. guilt was of his own have inferred that defendant conscious physical used and then as he knew that he had a ruse insofar effectively break into the commit force Consequently, of defendant’s crime. the forbidden evidence significantly impact postarrest outcome because, evidence, the still would the trial absent interactions have drawn an adverse inference from defendant’s (see People on the evidence based admissible [1975]). Crimmins, 230, overwhelming
Furthermore, of defendant’s People Boop, .; see AD3d also id generally Dept [4th [2014]; see 2014], lv denied NY3d 1082 *11 Conyers, all, NY2d at even After without the contested proof silence, of defendant’s the still have would received (1) the following fully admissible testimonial evidence: defend- girlfriend’s ant’s consistent in testimony, which essential substance matched her statement the that defendant police, had used ruse to convince door open apart- her the to the ment, pushed that he had the door open when she tried to him, close it on her, that had brutally raped that she had called a friend to come to her aid and she had that reported (2) friend, the to the rape who called the police; the testimony of friend, the Nicole Veaudry, that the had girlfriend summoned her the apartment immediately incident, after the had that reported something had occurred, had been and shaking (3) and crying, had prompted Veaudry call police; testimony of police officers that the girlfriend was still upset when they call responded and that the bathroom (4) sink in dislodged; been the testimony that, in response said, questioning, “Honestly, do think you down?”; I broke door just and (5) defendant’s grand jury testimony, which he delivered an account of events that seemed tailored to match medi- evidence, cal and other which he admitted having reviewed prior testimony.
Additionally, without knowledge postarrest silence, the jurors still would have learned the following (1) physical evidence and explanatory DNA evidence testimony: that defendant showing left his saliva on several of his (2) girlfriend’s body parts incident; physical evi- dence of numerous cuts and a mark hand-shaped on (3) girlfriend’s body; physical a laceration between (4) the girlfriend’s anus; and and vagina the sexual assault nurse examiner’s testimony that this had been injury caused trauma, blunt force it was consistent with forcible sexual that, assault theoretically while it could oc- have curred during sex, consensual nature and location rendered injury a consent scenario unlikely. Given that physical evidence corroborated defendant’s account girlfriend’s of a forcible and rape testimonial proof thoroughly reinforced her credibility defendant’s, while undermining evidence overwhelmingly established guilt crimes of which he was convicted. sum, certainly while I do not condone the use of
defendant’s postarrest him, I conclude against was harmless, for of that evidence the introduction
error highly likely Rather, was the not the persuasive source his conviction. proof of defendant’s and admissible ultimately I Furthermore, here. find defend- led to the verdict unpreserved remaining lack- to be either or ant’s contentions Accordingly, respectfully ing af- dissent and vote to I merit. Appellate order. firm the Division’s Judges Judge Lippman Chief Read, Stein Rivera opinion Judge in which concur; dissents in an Abdus-Saeaam
Judge Pigott concurs. and new trial ordered. Order reversed