Nevertheless, defendant is entitled to a new trial. During their case-in-chief, the People generally cannot introduce evidence that a defendant invoked his or her constitutional right to remain silent or to obtain counsel (see People v Von Werne, 41 NY2d 584, 587-588 [1977]; People v Dashnaw, 85 AD3d 1389, 1392 [2011], lv denied 17 NY3d 815 [2011]; People v Hunt, 18 AD3d 891, 892 [2005]). At the trial here, the People played the recording of the police interview up to and including the portion in which defendant stated that he would not sign the line of the Miranda form indicating his willingness to speak to the detective, and defendant stated, "Let me have a lawyer."

Defendant also contends that he was deprived of a fair trial as a result of the People's improper elicitation of testimony – from the detective who interviewed him – that he invoked his right to counsel and his right against self-incrimination. A defendant's invocation of his or her right against self-incrimination and/or his or her right to counsel during a custodial interrogation may not be used against him or her as part of the People's case-in-chief (seePeople v. Lentini, 163 A.D.3d 1052, 1054, 80 N.Y.S.3d 678 [2018] ; People v. Johnson, 70 A.D.3d 1188, 1190, 896 N.Y.S.2d 199 [2010] ; People v. Murphy, 51 A.D.3d 1057, 1058, 856 N.Y.S.2d 713 [2008], lv denied 11 N.Y.3d 792, 866 N.Y.S.2d 618, 896 N.E.2d 104 [2008] ). This is because such evidence "creates a prejudicial inference of consciousness of guilt" ( People v. Hunt, 18 A.D.3d 891, 892, 794 N.Y.S.2d 490 [2005] ; seePeople v. Lentini, 163 A.D.3d at 1054, 80 N.Y.S.3d 678 ; People v. Demagall, 114 A.D.3d 189, 202, 978 N.Y.S.2d 416 [2014], lv denied 23 N.Y.3d 1035, 993 N.Y.S.2d 249, 17 N.E.3d 504 [2014] ). However, the People's improper elicitation of the prejudicial evidence does not automatically result in a reversal of the judgment of conviction, even in the absence of a curative instruction or in the face of a deficient curative instruction (see e.g.People v. Flower, 173 A.D.3d 1449, 1456, 105 N.Y.S.3d 152 [2019], lv denied 34 N.Y.3d 931, 109 N.Y.S.3d 752, 133 N.E.3d 458 [2019] ; People v. Dashnaw, 85 A.D.3d 1389, 1393, 925 N.Y.S.2d 262 [2011], lv denied 17 N.Y.3d 815, 929 N.Y.S.2d 803, 954 N.E.2d 94 [2011] ; People v. Murphy, 79 A.D.3d 1451, 1453, 913 N.Y.S.2d 815 [2010], lv denied 16 N.Y.3d 862, 923 N.Y.S.2d 424, 947 N.E.2d 1203 [2011] ; but seePeople v. Knowles, 42 A.D.3d 662, 664, 839 N.Y.S.2d 324 [2007] ). Rather, any such constitutional error is subject to a harmless error anal

We agree with defendant that Supreme Court erred in permitting the People to elicit testimony about defendant's invocation of his right to silence and to comment on that testimony in summation. "[I]t is axiomatic that when a defendant invokes his or her constitutional right against self-incrimination, the People may not use his or her silence against him or her on their direct case" (People v. Goldston, 6 A.D.3d 736, 737, 776 N.Y.S.2d 102 [2004] ; see People v. Hunt, 18 A.D.3d 891, 892, 794 N.Y.S.2d 490 [2005] ). The principle applies when a defendant unequivocally states his or her desire to halt all questioning, even if he or she has previously responded to other questions (see People v. Von Werne, 41 N.Y.2d 584, 588, 394 N.Y.S.2d 183, 362 N.E.2d 982 [1977] ; People v. Hunt, 18 A.D.3d at 892, 794 N.Y.S.2d 490 ).

One other issue merits brief comment. We are troubled by the admission of Tuckman's testimony that defendant requested counsel while in police custody ( see People v. Savage, 50 N.Y.2d 673, 677–678, 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. Al–Kanani, 26 N.Y.2d 473, 478, 311 N.Y.S.2d 846, 260 N.E.2d 496 [1970]; People v. Johnson, 70 A.D.3d 1188, 1190, 896 N.Y.S.2d 199 [2010]; People v. Hunt, 18 A.D.3d 891, 892, 794 N.Y.S.2d 490 [2005] ), although this issue was not preserved. Specifically, during Tuckman's testimony, the People asked him whether, during his examination of defendant, “there was any conversation concerning about whether he asked for a lawyer ... when he talked to the police and gave the [11] page statement?” Tuckman responded that it was discussed and then related his discussion with defendant as follows: “I said, ‘You know, you asked for a lawyer.

We also agree with the defendant's contention, although unpreserved for appellate review, that it was error to permit a police detective to testify that during interrogation, the defendant, who had become "defensive," stopped answering his questions, and refused to give the detective "an explanation for anything." Neither a defendant's silence or invocation of the right against self-incrimination during police interrogation can be used against him on the People's direct case ( see People v Basora, 75 NY2d 992, 993; People v Von Werne, 41 NY2d 584, 587-588; People v Maier, 11 AD3d 681; People v Murphy, 51 AD3d 1057, 1058), and this rule applies equally to situations where, as here, the defendant initially responds to questioning but then declines to answer additional questions ( see People v Hunt, 18 AD3d 891, 892). Thus, the subject testimony improperly penalized the defendant for exercising his right to remain silent and created a prejudicial inference of consciousness of guilt ( see People v De George, 73 NY2d 614, 618-619; People v Conyers, 52 NY2d 454, 458-459; People v Von Werne, 41 NY2d at 588; People v Hunt, 18 AD3d at 892).

A defendant's invocation of his or her right against self-incrimination and/or his or her right to counsel during a custodial interrogation may not be used against him or her as part of the People's case-in-chief (see People v Lentini, 163 A.D.3d 1052, 1054 [2018]; People v Johnson, 70 A.D.3d 1188, 1190 [2010]; People v Murphy, 51 A.D.3d 1057, 1058 [2008], lv denied 11 N.Y.3d 792 [2008]). This is because such evidence "creates a prejudicial inference of consciousness of guilt" (People v Hunt, 18 A.D.3d 891, 892 [2005]; see People v Lentini, 163 A.D.3d at 1054; People v Demagall, 114 A.D.3d 189, 202 [2014], lv denied 23 N.Y.3d 1035 [2014]).

The errors that the jury heard that defendant contemplated taking a plea and that the prosecutor commented about defendant's request for counsel were not harmless (seePeople v. Hunt, 18 A.D.3d 891, 892–893, 794 N.Y.S.2d 490 [2005] ; see generallyPeople v. Crimmins, 36 N.Y.2d 230, 237–238, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ). Although defendant's arguments on these points are unpreserved, under the circumstances of this case, we deem it necessary to exercise our interest of justice jurisdiction and reverse and order a new trial (see CPL 470.15[6][a] ).

When asked who attended his interview with defendant, a police investigator mentioned that defendant's attorney was present. Defendant did not exercise his right to remain silent nor did he cease questioning to obtain an attorney, as the attorney had accompanied him to the interview (comparePeople v. Dashnaw, 85 A.D.3d 1389, 1392, 925 N.Y.S.2d 262 [2011], lv denied 17 N.Y.3d 815, 929 N.Y.S.2d 803, 954 N.E.2d 94 [2011] ; People v. Hunt, 18 A.D.3d 891, 892–893, 794 N.Y.S.2d 490 [2005] ). Evidence of counsel's presence and the reading of Miranda rights pertained to the issue of voluntariness of defendant's statements, which the People were required to establish (seePeople v. Huntley, 15 N.Y.2d 72, 78, 255 N.Y.S.2d 838, 204 N.E.2d 179 [1965] [noting that a defendant is entitled to challenge voluntariness of statements both pretrial and before a jury]; see alsoPeople v. Sanza, 121 A.D.2d 89, 90–91, 97, 509 N.Y.S.2d 311 [1986] ).

There was a pretrial ruling with respect to this video and these portions of the video are ruled admissible under New York State law." In our view, the court's imprecise and confusing instruction – which failed to emphatically instruct the jury to disregard any reference to an attorney and to reiterate that defendant has an absolute right to remain silent – was insufficient to protect against the possibility that the jury might improperly infer consciousness of guilt from defendant's invocation of his right to counsel and to remain silent (seePeople v. Lentini, 163 A.D.3d at 1054, 80 N.Y.S.3d 678 ; People v. Hunt, 18 A.D.3d 891, 892, 794 N.Y.S.2d 490 [2005] ). The potential for prejudice was further compounded by Supreme Court's vague reference to "a pretrial ruling," which may have had the unintended consequence of validating the references to an attorney by noting that the matter was the subject of a pretrial hearing.

Defendant next contends that County Court abused its discretion in declining to declare a mistrial after repeated references to her desire to speak to an attorney on the night of the accident. To that end, proof of a defendant's invocation of his or her right to counsel may "create[ ] a prejudicial inference of consciousness of guilt" and has no place in the People's case-in-chief ( People v. Hunt , 18 A.D.3d 891, 892, 794 N.Y.S.2d 490 [2005] ; seePeople v. Von Werne , 41 N.Y.2d 584, 588, 394 N.Y.S.2d 183, 362 N.E.2d 982 [1977] ; People v. Wright , 126 A.D.3d 1036, 1038, 5 N.Y.S.3d 552 [2015], lv denied 26 N.Y.3d 1094, 23 N.Y.S.3d 651, 44 N.E.3d 949 [2015] ). Defendant's strategy at trial relied in large part upon the fact that she was not at fault in the accident but did witness the victim's body being propelled through her windshield and coming to rest inches away from her.