Opinion
September 20, 1990
Appeal from the Supreme Court, New York County, Martin Rettinger, J., Frederic S. Berman, J.
Defendant and an accomplice were accused of a robbery on a public street in Harlem in September 1986. At trial, defendant testified he was not one of the perpetrators but had in fact intervened to assist the complainant. On cross-examination, the prosecutor asked defendant whether he had so informed the police when he was arrested. Defendant replied he did not have the opportunity to do so. On summation, the prosecutor remarked, "Does he once tell the police that he saved the old man? No."
A defendant has the constitutional right to remain silent, and his exercise of that right after his arrest cannot be used by the People as part of their direct case. (People v. Basora, 75 N.Y.2d 992, 993; People v. Conyers, 49 N.Y.2d 174.) Although the court may have erred in permitting defendant's postarrest silence to be used to impeach his credibility, this issue is unpreserved for appellate review. Were we to reach the merits we would nonetheless find that the error was harmless in view of the overwhelming evidence of guilt. (People v. Crimmins, 36 N.Y.2d 230; People v. Basora, supra.) Further, defense counsel had cross-examined the arresting officer with respect to defendant's postarrest statements. Two eyewitnesses observed defendant and an accomplice commit the robbery. Moments after the robbery, defendant, who was apprehended near the scene, was positively identified as one of the perpetrators. Also, complainant's watch, which was stolen during the incident, was recovered from defendant's front pocket.
Defendant's remaining contentions are unpreserved for appellate review (CPL 470.05) and we decline to review them in the interests of justice.
Concur — Murphy, P.J., Ross, Carro and Rosenberger, JJ.