Opinion
2015-04-28
The PEOPLE of the State of New York, Respondent, v. Robert BROWN, Defendant–Appellant.
Seymour W. James, Jr., The Legal Aid Society, New York (Frances A. Gallagher of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Jamie Hickey–Mendoza of counsel), for respondent.
Seymour W. James, Jr., The Legal Aid Society, New York (Frances A. Gallagher of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Jamie Hickey–Mendoza of counsel), for respondent.
TOM, J.P., SWEENY, MANZANET–DANIELS, CLARK, KAPNICK, JJ.
Judgment, Supreme Court, New York County (Michael J. Obus, J.), rendered March 28, 2012, convicting defendant, after a nonjury trial, of criminal possession of stolen property in the fourth degree and unauthorized use of a vehicle in the second degree and sentencing him, as a second felony offender, to concurrent terms of two to four years, unanimously affirmed.
Defendant did not preserve his claim that the prosecutor improperly impeached him by way of his alleged exercise of his right to remain silent, and then improperly commented on such silence during summation, and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits. After receiving Miranda warnings, and agreeing to provide a statement to the police, defendant made statements that omitted significant exculpatory matter that he included in his trial testimony. Under the circumstances, this was an unnatural omission, and a permissible basis for impeachment ( see People v. Savage, 50 N.Y.2d 673, 431 N.Y.S.2d 382, 409 N.E.2d 858 [1980], cert. denied449 U.S. 1016, 101 S.Ct. 577, 66 L.Ed.2d 475 [1980]; People v. Hightower, 237 A.D.2d 166, 654 N.Y.S.2d 759 [1st Dept.1997], lv. denied89 N.Y.2d 1094, 660 N.Y.S.2d 388, 682 N.E.2d 989 [1997]; People v. Foy, 220 A.D.2d 220, 631 N.Y.S.2d 693 [1st Dept.1995], lv. denied87 N.Y.2d 901, 641 N.Y.S.2d 231, 663 N.E.2d 1261 [1995] ).