People v. Prashad

46 A.D.3d 844, 848 N.Y.S.2d 279

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 18, 2007
• Status: Published

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Roman, J.), rendered December 14, 2005, convicting him of assault in the second degree and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Contrary to the defendant’s contention, he was not denied a fair trial when the court permitted the prosecutor to question him regarding his failure to provide police officers with certain exculpatory information at the time of arrest. Generally, a defendant’s postarrest silence cannot be used for impeachment purposes (see People v Conyers, 52 NY2d 454, 459 [1981]). However, where, as here, a defendant speaks to the police and omits exculpatory information which he presents for the first time at trial, the defendant may be impeached with the omission (see People v Savage, 50 NY2d 673, 676, 679 [1980], cert denied 449 US 1016 [1980]; People v Blacks, 221 AD2d 351 [1995]; People v Spinelli, 214 AD2d 135, 139-141 [1995]; People v West, 212 AD2d 651, 652 [1995]; People v Harrison, 149 AD2d 434, 434-435 [1989]).

The defendant’s remaining contention is unpreserved for appellate review and, in any event, is without merit. Miller, J.P., Crane, Dillon and Balkin, JJ., concur.