Opinion
2014-01-15
The PEOPLE, etc., respondent, v. Reginald THEODORE, appellant.
Lynn W.L. Fahey, New York, N.Y. (Casey Rose Scott of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Solomon Neubort, and Daniel Berman of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Casey Rose Scott of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Solomon Neubort, and Daniel Berman of counsel), for respondent.
THOMAS A. DICKERSON, J.P., L. PRISCILLA HALL, JEFFREY A. COHEN, and ROBERT J. MILLER, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Del Giudice, J.), rendered April 24, 2012, convicting him of manslaughter in the first degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is reversed, on the law, and the matter is remitted to the Supreme Court, Kings County, for a new trial before a different Justice.
The defendant contends that the jury verdict was against the weight of the evidence because the People failed to disprove his justification defense beyond a reasonable doubt. In fulfilling our responsibility to conduct an independent review of the weight of the evidence ( seeCPL 470.15[5]; People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor ( see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053, cert. denied542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Upon reviewing the record, we are satisfied that the rejection of the justification defense and the verdict of guilt were not against the weight of the evidence ( see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).
Contrary to the People's contention, the Supreme Court erred when it permitted the prosecutor to question the defendant about his post-arrest silence. Generally, a defendant's post-arrest silence cannot be used for impeachment purposes ( see People v. De George, 73 N.Y.2d 614, 618, 543 N.Y.S.2d 11, 541 N.E.2d 11; People v. Conyers, 52 N.Y.2d 454, 457, 438 N.Y.S.2d 741, 420 N.E.2d 933; People v. Tucker, 87 A.D.3d 1077, 1078, 929 N.Y.S.2d 631; People v. Mejia, 256 A.D.2d 422, 422, 683 N.Y.S.2d 541). Further, “ ‘an individual's pretrial failure to speak when confronted by law enforcement officials is of extremely limited probative worth’ while ‘the risk of prejudice is substantial’ ” (People v. Tucker, 87 A.D.3d at 1078, 929 N.Y.S.2d 631, quoting People v. Conyers, 52 N.Y.2d at 458, 459, 438 N.Y.S.2d 741, 420 N.E.2d 933).
Here, over defense counsel's objection, the prosecutor was permitted to impeach the defendant's testimony with his failure to offer an exculpatory version of the events to the police. Although the defendant initially responded to certain questions asked by the police, he then invoked his right to remain silent and offered no information “narrat[ing] the essential facts of his involvement in the crime” (People v. Savage, 50 N.Y.2d 673, 676, 431 N.Y.S.2d 382, 409 N.E.2d 858, cert. denied449 U.S. 1016, 101 S.Ct. 577, 66 L.Ed.2d 475). Accordingly, the Supreme Court erred in allowing the prosecutor to pursue this line of inquiry ( see People v. McArthur, 101 A.D.3d 752, 753, 956 N.Y.S.2d 71; People v. Tucker, 87 A.D.3d at 1079, 929 N.Y.S.2d 631). Further, since the evidence in this case was not overwhelming, the error was not harmless ( see People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787).
In light of our determination, we need not reach the defendant's remaining contentions.
We note that because of intemperate remarks made by the Supreme Court Justice at sentencing, which suggested that the Justice improperly sentenced the defendant based on a crime for which he was acquitted ( see People v. Francis, 100 A.D.3d 1017, 954 N.Y.S.2d 626; People v. Matyjewicz, 80 A.D.3d 779, 915 N.Y.S.2d 498), and the Justice's refusal to consider a plea agreement reached during the course of the trial based on strict adherence to the Justice's individual policy, which was unrelated to the circumstances of this defendant and the proposed plea agreement at issue ( see People v. Compton, 157 A.D.2d 903, 550 N.Y.S.2d 148), we remit the matter to the Supreme Court, Kings County, for a new trial before a different Justice.