Opinion
Argued September 17, 1997
Decided October 16, 1997
APPEAL, by permission of an Associate Judge of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Second Judicial Department, entered August 19, 1996, which affirmed a judgment of the Nassau County Court (Joseph C. Calabrese, J.), rendered upon a verdict convicting defendant of attempted rape in the first degree.
People v Hendricks, 222 A.D.2d 74, affirmed.
Ronald L. Kuby, New York City, for appellant.
Denis Dillon, District Attorney of Nassau County, Mineola ( John F. McGlynn, Tammy J. Smiley and Peter A. Weinstein of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed. During the People's direct case, the prosecutor elicited police testimony that defendant was given his Miranda warnings, acknowledged receipt of the warnings and agreed in writing to waive his rights. The officer further testified that, after obtaining the waiver, he informed defendant that he would like to obtain a written statement whereupon defendant responded, "I'll talk to you but I am not signing anything else." Defendant then gave an oral statement.
In these circumstances, the officer's testimony did not constitute an impermissible comment on defendant's invocation of his right to silence. Defendant did not invoke his right to silence. On the contrary he waived it, and after indicating that he would rather not put his statement in writing, defendant gave an oral statement. Defendant's preference for making his statement orally rather than in writing was not, in this context, an indication that he wanted to cut off further inquiry which would have invoked his right to silence ( cf., People v Von Werne, 41 N.Y.2d 584, 587-588 [defendant who refused to talk further invoked his right to remain silent]).
Defendant's reliance on Connecticut v Barrett ( 479 U.S. 523) is misplaced as defendant's refusal to give a written statement did not implicate his right to counsel ( cf., Connecticut v Barrett, supra [where defendant agreed to talk but refused to make a written statement without counsel, defendant's invocation of his right to counsel was limited to the making of written statements and oral statement was admissible]).
In this case, defendant was properly given his Miranda warnings and waived his rights. The officer's testimony regarding the circumstances in which defendant made the oral statement was, therefore, not improper.
Chief Judge KAYE and Judges TITONE, BELLACOSA, SMITH, LEVINE, CIPARICK and WESLEY concur.
Order affirmed in a memorandum.