[1078]*1078The 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 US 436 [1966]), and asked whether he was 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 NY2d 454 [1981]; People v Fox, 60 AD3d 966, 967 [2009]; People v Mejia, 256 AD2d 422 [1998]; People v Blacks, 221 AD2d 351 [1995]; People v Spinelli, 214 AD2d 135, 139 [1995]). 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 AD2d at 139; see Brecht v Abrahamson, 507 US 619, 628 [1993]; Doyle v Ohio, 426 US 610 [1976]). 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 NY2d at 458, 459; see People v Savage, 50 NY2d 673, 677-678 [1980], cert denied 449 US 1016 [1980]; People v Spinelli, 214 AD2d at 139-140; People v Haines, 139 AD2d 591, 592 [1988]). This is because an [1079]*1079individual’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 NY2d at 458).
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 NY2d at 678-679; People v Fox, 60 AD3d at 967; People v Prashad, 46 AD3d 844 [2007]; People v Blacks, 221 AD2d 351 [1995]), 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 AD2d 775, 776 [1986]; see People v Torres, 111 AD2d 885, 886 [1985]; cf. People v Savage, 50 NY2d 673 [1980]). 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 NY2d at 680 [emphasis added]; see People v Santiago, 119 AD2d 775 [1986]).
Unlike our dissenting colleague, we find this case to be squarely controlled by this Court’s decisions in People v Santiago (119 AD2d 775 [1986]) and People v Torres (111 AD2d 885 [1985]), 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 NY2d at 677). 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).
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 complain[1080]*1080ants had recognized him (see People v Santiago, 119 AD2d at 776; People v Torres, 111 AD2d at 886). 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 AD2d at 776; People v Torres, 111 AD2d at 886). Rather, this Court concluded that the defendants had maintained an “effective silence, even if something less than total” (People v Santiago, 119 AD2d at 776 [emphasis omitted], quoting People v Savage, 50 NY2d at 680; see People v Torres, 111 AD2d at 886).
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 NY2d at 458). Thus, the defendant’s omission was of minimal probative value (id. at 459).
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 (Harris v New York, 401 US 222, 224, 225-226 [1971], affg 25 NY2d 175 [1969]; see People v Maerling, 64 NY2d 134, 140 [1984]).
Free access — add to your briefcase to read the full text and ask questions with AI
[1078]*1078The 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 US 436 [1966]), and asked whether he was 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 NY2d 454 [1981]; People v Fox, 60 AD3d 966, 967 [2009]; People v Mejia, 256 AD2d 422 [1998]; People v Blacks, 221 AD2d 351 [1995]; People v Spinelli, 214 AD2d 135, 139 [1995]). 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 AD2d at 139; see Brecht v Abrahamson, 507 US 619, 628 [1993]; Doyle v Ohio, 426 US 610 [1976]). 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 NY2d at 458, 459; see People v Savage, 50 NY2d 673, 677-678 [1980], cert denied 449 US 1016 [1980]; People v Spinelli, 214 AD2d at 139-140; People v Haines, 139 AD2d 591, 592 [1988]). This is because an [1079]*1079individual’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 NY2d at 458).
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 NY2d at 678-679; People v Fox, 60 AD3d at 967; People v Prashad, 46 AD3d 844 [2007]; People v Blacks, 221 AD2d 351 [1995]), 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 AD2d 775, 776 [1986]; see People v Torres, 111 AD2d 885, 886 [1985]; cf. People v Savage, 50 NY2d 673 [1980]). 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 NY2d at 680 [emphasis added]; see People v Santiago, 119 AD2d 775 [1986]).
Unlike our dissenting colleague, we find this case to be squarely controlled by this Court’s decisions in People v Santiago (119 AD2d 775 [1986]) and People v Torres (111 AD2d 885 [1985]), 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 NY2d at 677). 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).
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 complain[1080]*1080ants had recognized him (see People v Santiago, 119 AD2d at 776; People v Torres, 111 AD2d at 886). 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 AD2d at 776; People v Torres, 111 AD2d at 886). Rather, this Court concluded that the defendants had maintained an “effective silence, even if something less than total” (People v Santiago, 119 AD2d at 776 [emphasis omitted], quoting People v Savage, 50 NY2d at 680; see People v Torres, 111 AD2d at 886).
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 NY2d at 458). Thus, the defendant’s omission was of minimal probative value (id. at 459).
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 (Harris v New York, 401 US 222, 224, 225-226 [1971], affg 25 NY2d 175 [1969]; see People v Maerling, 64 NY2d 134, 140 [1984]). 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 v New York, 401 US at 225; People v Wise, 46 NY2d 321, 324-325 [1978] [defendant who testified that he was not present when another individual shot the victim was permissibly impeached by pretrial statement that the gun “went off accidentally”]). Here, the defendant’s direct testimony [1081]*1081to the effect that he was present at the shooting, but that it was Mustafa, rather than him, who was the shooter, was perfectly consistent with his pretrial statement that he was present at the shooting but was not the shooter. The People impeached the defendant not with an inconsistent statement, but, rather, with his failure to speak, to tell the police that Mustafa was the shooter, i.e., with his post-arrest silence. Thus, the present case does not fall under the purview of Harris, but, instead, under that of Conyers, which concerns the use of post-arrest silence and prohibits the People from using such silence for impeachment purposes (see People v Conyers, 52 NY2d at 457, 459; see e.g. People v Prashad, 46 AD3d 844 [2007]), except under circumstances akin to those present in Savage, which do not exist here.
Accordingly, the People should not have been permitted to question the defendant about his post-arrest silence. Under the circumstances, we cannot conclude that this error was harmless. The only evidence presented by the People to prove that the defendant was the shooter was the in-court identification of the defendant by two brothers and their friend, who did not know the defendant, and a grainy surveillance video and still pictures taken from the video, from which the face of the shooter could not be clearly discerned. Further, the defendant testified at trial, and identified himself on the video as an individual who fought with one of the eyewitnesses. In addition to the lack of overwhelming evidence of the defendant’s guilt, there was a reasonable possibility that the error affected the verdict (see generally People v Crimmins, 36 NY2d 230, 237 [1975]). Indeed, the Court of Appeals has recognized that “evidence of a defendant’s pretrial silence may have a disproportionate impact upon the minds of the jurors” (People v Conyers, 52 NY2d at 459; see People v Livingston, 128 AD2d 645, 646 [1987]). Further, the error in cross-examination was compounded by the prosecutor’s repeated reference to the defendant’s post-arrest silence during summation, including her statement that “an innocent person when they’re arrested for a crime they didn’t commit and they know who did it will say [who] did it.”
Under these circumstances, we conclude that a new trial is warranted.
In light of our determination, we do not reach the defendant’s remaining contention. Skelos, Sgroi, and Miller, JJ., concur.