Opinion
April 11, 1991
Appeal from the Supreme Court, Bronx County (George Covington, J.).
Defendant and his accomplice were convicted of robbing a livery driver at gunpoint. Defendant testified that he was innocent, that he had somehow wrested the gun from complainant after a fare dispute, and that he was planning to surrender the gun to the police when he was arrested. During cross-examination, the prosecutor asked defendant whether he had ever told the police that it was he who had been the victim of a crime, to which defendant responded that he told them that they had arrested the wrong person.
Generally, it is improper to use defendant's pre-trial silence as direct evidence of guilt, or to impeach the credibility of a testifying defendant (People v. De George, 73 N.Y.2d 614). Here, however, the conspicuous absence of defendant's exculpatory statements from those admissions defendant did make was sufficiently significant to warrant the inference that the statement was more consistent with guilt than innocence, and was admissible to impeach defendant's credibility (People v. Savage, 50 N.Y.2d 673; see, People v. Rothschild, 35 N.Y.2d 355, 358-359). On this score, the comment by the prosecutor on summation was properly limited to reference to defendant's credibility.
Defendant's remaining claims have no merit. Defendant did not lay a proper foundation for the admission of a detective's report of the incident (People v. Maisonave, 140 A.D.2d 545, lv denied 72 N.Y.2d 958). There is ample support in the record for the court's decision to accept a partial verdict (CPL 310.70), and the court did not abuse its power to control the scope of cross-examination. (People v. Schwartzman, 24 N.Y.2d 241, cert denied 396 U.S. 846.) Defendant's present objection to the court's charge on the complainant's credibility has not been preserved, and his arguments on the impact of the court's decision to raise his bail during the trial are speculative.
Concur — Sullivan, J.P., Wallach, Asch and Smith, JJ.