AD1 order dated April 16, 2015, affirming judgment of conviction. Decision below: 127 AD3d 533, 6 NYS3d 252. Fahey, J., granted leave July 13, 2015.

ISSUE PRESENTED: Whether the trial court erred in allowing the People to impeach defendant with omissions from the defendant’s spontaneous post-arrest, pre-Miranda statement. (Assigned counsel: Marisa Cabrera & Robert S. Dean, Center for Appellate Litigation, 120 Wall Street, 28th Floor, NYC 10005.)

Issue:  Whether it was error to allow the prosecution to use defendant's selective silence, while making a spontaneous post-detention statement to the police, to impeach his trial testimony.

 

Held:  Impeachment through cross-examination was permissible in order to challenge the credibility of defendant's trial testimony as to the events that had transpired at the scene.

 

CAL Observes:  The Court has consistently upheld that “absent unusual circumstances” impeachment of a defendant due to factual omissions is prohibited.  People v. Williams, 25 N.Y.3d 185 (2015).  Prior to Chery, the Court had only found that only two factual scenarios presented those “unusual circumstances” to warrant impeachment of a defendant through selective silence. See, e.g., People v. Savage, 50 N.Y.2d 673 (1980). While the Court acknowledged the factual differences between Savage (a post-Miranda warning incriminating statement where exculpatory facts were omitted) and Chery (a pre-Miranda, spontaneous exculpatory statement where additional exculpatory facts were not included), the Court nonetheless broadened this well-established rule.  Citing the defendant’s decision to provide some explanation of what happened at the scene, the Court determined that it was unnatural to have omitted the “significantly more favorable version of events to which he testified at trial.”  The Court’s lack of consideration of the surrounding factual circumstances that prohibited the defendant from providing a full statement is troubling and may prove to be very harmful for defendants who fail to mention the most mitigating facts for any number of innocent reasons.  Moreover, trial courts will now be tasked with deciding what constitutes a “significantly more favorable version of events” to justify impeachment by omission.