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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 34
The People &c.,
            Respondent,
        v.
Paul Williams,
            Appellant.




             Piotr Banasiak, for appellant.
             James P. Maxwell, for respondent.




FAHEY, J.:
             This appeal concerns the People's references in their
case-in-chief to defendant's selective silence during custodial
interrogation, after defendant had waived his Miranda rights and
agreed to speak to the police.    We hold, as a matter of state
evidentiary law, that evidence of a defendant's selective silence

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generally may not be used by the People as part of their case-in-
chief, either to allow the jury to infer the defendant's
admission of guilt or to impeach the credibility of the
defendant's version of events when the defendant has not
testified.
                                  I.
             On August 30, 2008, defendant, the victim's former
boyfriend, arrived at the victim's apartment unannounced.
According to the victim's trial testimony, defendant gained entry
to the apartment by means of a ruse and then raped her in the
bathroom of the apartment; she testified that the bathroom sink
crashed to the floor as she struggled with defendant.     After
defendant left the apartment, the victim called the police, and
defendant was taken into custody.      The detective who interviewed
defendant advised him of his Miranda rights.      Defendant stated
that he understood those rights and that he was willing to speak
with the detective, but he refused to sign the Miranda form.
             Defendant was evasive during the ensuing interview.
Defendant admitted that he knew the victim, but when the
detective asked him specific questions about the incident,
defendant either did not respond or repeated the detective's
questions back to him.    When asked whether he had sex with the
victim, defendant did not answer.      While the police were
transporting defendant to his arraignment, defendant admitted
that he had been in the victim's kitchen earlier that day.


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            Saliva taken from the victim's shoulder and left breast
matched defendant's DNA.    In addition, the victim had a bruise
and scratches on her body, and the sink in her bathroom was
broken off from the wall.
            Defendant was charged with rape in the first degree,
burglary in the second degree, sexual abuse in the first degree,
rape in the third degree, and criminal impersonation in the first
degree.   After a Huntley hearing, County Court denied defendant's
motion to suppress his statements to the police.
            At trial, the prosecutor told the jurors during opening
statements that they would hear defendant's grand jury testimony,
during which defendant asserted that he and the victim had
consensual sex in the bathroom of her apartment on the day in
question.   The prosecutor further stated that the jury would be
able to compare defendant's grand jury testimony with defendant's
statements to the detective during the custodial interview, which
the prosecutor characterized as "not outright denying what ha[d]
happened, but not admitting to it either."
            During her opening statement, defense counsel told the
jury that defendant had a right to refuse to speak to the police
and that his silence should not be used against him.   Defense
counsel later objected to the part of the prosecutor's opening
referring to defendant's postarrest silence.   County Court
refused to issue a curative instruction.   The court reasoned that
defense counsel had adequately responded to the prosecutor's


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opening statement in her own opening statement.
            The court permitted the detective who had interviewed
defendant to testify, over defense counsel's objection, as
follows:
            "[THE PROSECUTOR]: Did you ever specifically
            ask [defendant] if he had sex with [the
            victim]?
            [THE DETECTIVE]: Yes.
            Q.        And what was his response?
            A.        He didn't answer.
            Q.        He didn't answer?
            A.        No.
            Q.        Did he deny it?
            . . .
            A.        No."

            Later during the People's direct case, the court
admitted defendant's grand jury testimony in evidence.     Defendant
did not testify at trial and did not present any evidence.
            During closing arguments, the People again noted
defendant's failure to respond when the detective asked defendant
whether he had sex with the victim.     Defense counsel made no
specific objection to this portion of the prosecutor's closing
argument.   The People argued that in light of defendant's failure
to respond to that question, defendant's grand jury testimony
that the sex was consensual should be deemed to be incredible and
a fabrication concocted by defendant after he learned that the

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saliva on the victim's body matched his DNA.   The jury
subsequently convicted defendant of sexual abuse in the first
degree, rape in the third degree, and criminal impersonation in
the first degree.
           The Appellate Division modified County Court's judgment
in respects that are not pertinent here and, as modified,
affirmed (107 AD3d 1391 [4th Dept 2013]).   The court determined
that defendant's contention regarding the People's use of his
selective silence was preserved with respect to the prosecutor's
opening statement and the detective's testimony (see id. at
1393).   The court further determined that defendant's contention
with respect to the prosecutor's closing argument was
unpreserved, but it addressed that part of defendant's contention
as a matter of discretion in the interest of justice (see id.).
On the merits, the Appellate Division held that the comments by
the prosecutor concerning defendant's postarrest silence during
opening and closing statements were improper and that County
Court erred in admitting into evidence that portion of the
detective's testimony concerning defendant's selective silence
(see id. at 1394).   The Appellate Division further concluded,
however, that "any such errors were harmless beyond a reasonable
doubt" (id. [internal quotation marks omitted]).
           A Judge of this Court granted defendant leave to appeal
(22 NY3d 1160 [2014]).   We now reverse.




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                                II.
            As a preliminary matter, we agree with the Appellate
Division that defendant's contention regarding the People's use
of his selective silence was preserved as to the prosecutor's
opening statement and the detective's testimony, but not as to
the prosecutor's closing statement.     Consequently, we do not
consider defendant's challenge to the prosecutor's closing
argument.
            It is a well-established principle of state evidentiary
law that evidence of a defendant's pretrial silence is generally
inadmissible (see People v Rutigliano, 261 NY 103, 106-107
[1933]).    In People v Conyers (52 NY2d 454 [1981]), we extended
that principle and held that, absent circumstances not present in
that case, "our State rules of evidence preclude the use of a
defendant's pretrial silence to impeach his trial testimony" (id.
at 457).    This was so because a defendant's silence is generally
ambiguous and "of extremely limited probative worth" (id. at
458).   We noted that there are many reasons why an individual may
choose not to speak to police that are wholly unrelated to the
veracity of his or her trial testimony, but that there is a
substantial risk that jurors might "construe such silence as an
admission and . . . draw an unwarranted inference of guilt" (id.
at 458-459).
            We subsequently held in People v De George (73 NY2d 614
[1989]) that our decision in Conyers applied to a defendant's


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"pretrial" silence and was not limited to "postarrest" silence
(id. at 619-620).   We reiterated that, as a matter of state
evidentiary law, the People generally may not use evidence of
defendant's pretrial silence either on their direct case or to
impeach the defendant's trial testimony (see id. at 617-618).
           There may be a rare set of circumstances in which it is
permissible for the People to refer to a defendant's silence
during their case-in-chief.   However, the general evidentiary
principles established in Conyers and De George remain in place
today: the People generally may not refer to a defendant's
silence during their direct case, and, absent unusual
circumstances, the People may not use a defendant's silence to
impeach his or her trial testimony.
           We have twice held that such unusual circumstances
existed.   In People v Rothschild (35 NY2d 355 [1974]), the
defendant, a police officer, was accused of larceny by extortion
for his conduct in threatening members of the victim's family in
order to obtain money from the victim.    At trial, the defendant
testified that he had agreed to accept money from the victim in
order to arrest the victim for bribery.   On cross-examination,
the prosecutor elicited from defendant that he had not told any
of his superior officers after his arrest about the victim's
supposed bribe offer.   We held that such inquiry on cross-
examination was permissible because the defendant had a duty to
inform his superior officers of any bribe and, in light of that


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duty, his failure to speak was "patently inconsistent with the
defense asserted" (id. at 360).
            In People v Savage (50 NY2d 673 [1980], cert denied 449
US 1016 [1980]), the defendant was arrested on charges of
intentionally shooting the victim during an altercation.     The
defendant confessed to the arresting officer that he had shot the
victim.   During trial, the defendant testified that the victim
had attempted to rob him and that the discharge of the gun was
inadvertent.   On cross-examination, the prosecutor asked the
defendant whether he had told the arresting officer that the
victim had attempted to rob him.   We held, as a matter of state
evidentiary law, that such questioning was permissible
impeachment because defendant's conspicuous omission of these
exculpatory facts in his voluntary statement to police tended to
show that his trial testimony was a recent fabrication.      We
recognized in Savage, however, that "reference to the omission,
because of its negative nature, could not serve substantively as
evidence in chief to prove the commission of the crime" (id. at
679-680).
            The People contend that the circumstances present in
this case are analogous to those present in Savage and
Rothschild, and that the general principles articulated in
Conyers and De George do not control.    We disagree.
            This case is fundamentally different from Savage and
Rothschild.    In those cases, the People used conspicuous


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omissions from the defendants' statements to police during cross-
examination of the defendants, in order to impeach the
credibility of the exculpatory testimony provided by the
defendants at trial.   Here, by contrast, the People introduced,
as part of their case-in-chief, evidence regarding defendant's
failure to tell the detective during custodial interrogation that
he and the victim had consensual sex.    Later during their case-
in-chief, the People also introduced defendant's grand jury
testimony, during which defendant insisted that he and the victim
had consensual sex.    The People's use of defendant's silence
during their case-in-chief therefore violated our common-law
rules of evidence (see De George, 73 NY2d at 618).    Inasmuch as
defendant did not testify at trial, there is no need for us to
consider whether unusual circumstances such as those present in
Savage and Rothschild would have allowed the People to use
defendant's selective silence to impeach him if he had testified
(see Conyers, 52 NY2d at 459).
          The People claim that they were essentially impeaching
the defendant's grand jury testimony because evidence of
defendant's omission was necessary to demonstrate that the
version of events he told the grand jury was false.   The People
also contend that the admission of defendant's grand jury
testimony was helpful to defendant, because had the People not
presented that testimony to the jury, defendant "would have had
to testify in order to put his claim of consensual sex before the


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jury."   These arguments are without merit.   The People may not
introduce evidence that they deem favorable to defendant on their
direct case and impeach that evidence, also on their direct case,
with evidence of defendant's silence.
           Furthermore, although evidence of defendant's silence
was inadmissible during any part of the People's direct case, the
People's claim that their purpose was to impeach defendant's
grand jury testimony is weakened by the fact that they introduced
evidence of defendant's silence before they introduced his grand
jury testimony.   Thus, at the time that the detective testified
that defendant neither admitted nor denied having sex with the
victim, there was no contrary version of events to impeach.    The
risk that the jurors drew an improper inference of guilt was
therefore even greater.
           There is no need to depart from the principles
articulated in De George and Conyers merely because defendant's
silence here was only partial.   If silence could constitute an
answer, then the People could meet their burden simply by asking
a question.   Moreover, evidence of a defendant's selective
silence "is of extremely limited probative worth" (Conyers, 52
NY2d at 458).   A defendant who agrees to speak to the police but
refuses to answer certain questions may have the same legitimate
or innocent reasons for refusing to answer as a defendant who
refuses to speak to the police at all (see id.).    Furthermore,
the potential risk of prejudice from evidence of a defendant's


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selective silence is even greater than the risk to a defendant
who chooses to remain totally silent.   Jurors are more likely to
construe a defendant's refusal to answer certain questions as an
admission of guilt if the defendant has otherwise willingly
answered other police inquiries.   The ambiguous nature and
limited probative worth of a defendant's selective silence is
outweighed by the substantial risk of prejudice to the defendant
from admission of such evidence (see id. at 459).    Evidence of a
defendant's selective silence therefore generally may not be used
by the People during their case-in-chief and may be used only as
"a device for impeachment" of a defendant's trial testimony in
limited and unusual circumstances (Savage, 50 NY2d at 680; see
Conyers, 52 NY2d at 459).
          The People's use of defendant's selective silence in
this case was improper for another reason.   In her opening
statement, the prosecutor told the jury that defendant did not
admit or deny the accusations when he spoke to the detective.
Furthermore, during direct examination of the detective, the
prosecutor elicited testimony establishing not only that
defendant did not answer when asked whether he had sex with the
victim, but also that he did not deny it either.    In addition to
using defendant's selective silence as a purported impeachment
device during their direct case, the People also invited the jury
to infer an admission of guilt from defendant's failure to deny
the accusations.   The risk that the jury made such an


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impermissible inference is substantial where, as here, defendant
selectively answered some police questions but not others, and
the court refused to provide any curative instruction.   The
prosecutor's comments regarding defendant's selective silence
during opening statements were improper, and the court erred in
allowing testimony concerning defendant's selective silence at
trial, inasmuch as the comments and testimony allowed the jury to
"draw an unwarranted inference of guilt" (Conyers, 52 NY2d at
459).
          In light of our holding that the People's use of
defendant's selective silence violated our common-law evidentiary
principles, we need not address defendant's contention that the
People's use of his selective silence also violated the State and
Federal Constitutions (see De George, 73 NY2d at 618; Conyers, 52
NY2d at 457).
                                III.
          The People contend, in the alternative, that any error
was harmless.    Under the standard applicable to nonconstitutional
errors, an error is harmless if the proof of defendant's guilt is
overwhelming and there is no significant probability that the
jury would have acquitted defendant had the error not occurred
(see People v Crimmins, 36 NY2d 230, 242 [1975]).
          We conclude that the errors are not harmless as a
matter of law.   Even assuming that the evidence of defendant's
guilt is overwhelming, there is a significant probability that


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the jurors would have acquitted defendant if the errors did not
occur.   For the reasons discussed above, evidence of defendant's
selective silence is highly prejudicial, and there is a
significant risk that the jurors deemed defendant's failure to
answer the detective's question as to whether he had sex with the
victim to be an admission of guilt.      Moreover, the court refused
to provide a curative instruction to the jury after the
prosecutor referred to defendant's selective silence during her
opening statement.
             We do not place as much significance as our dissenting
colleagues on defendant's response to the detective during
custodial interrogation (see dissenting op. at 2-3).      Although it
is true that the detective had not said anything to defendant
"about breaking down a door," the detective told defendant that
"the reason why you're here today is that it's being alleged that
you forced your way into [the victim's] apartment and had sex
with her."    Defendant responded, "Honestly, do you think I just
broke down the door?"    Inasmuch as the detective had just told
defendant that he was accused of forcing his way into the
victim's apartment, defendant's response was consistent with a
denial of that accusation and with his later admission that he
was in the victim's apartment that day.     Furthermore, defendant's
response was in agreement with the version of events that he
later told the grand jury: that he and the victim had consensual
sex after she ultimately allowed him into her apartment.     We


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therefore respectfully disagree with our dissenting colleagues
that defendant's response to the detective "revealed his
knowledge of the breaking and entering aspect of the crime at a
time when such knowledge could only have flowed from his
participation in the offense" and that his response was evidence
of his consciousness of guilt (dissenting op. at 2-3).    Rather,
defendant's response to the detective was just as compatible with
a denial of the accusation that he had forced his way into the
victim's apartment.   We therefore hold that the error was not
harmless and that reversal is required.
          In light of our decision that there must be a new
trial, we have no need to address defendant's remaining
contentions.
          Accordingly, the order of the Appellate Division should
be reversed and a new trial ordered.




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People v Paul Williams
No. 34




ABDUS-SALAAM, J.(dissenting):
           I agree with the majority that the trial court erred in
permitting the People to adduce evidence of, and comment upon,
defendant's partial post-arrest silence on their case-in-chief,
for state evidentiary law barred the admission of that evidence
(see majority op. at 1-2, 6-12; see also People v De George, 73
NY2d 614, 617-620 [1989]; People v Conyers, 52 NY2d 454, 457-459
[1981]).   As the majority's excellent and learned discussion of
our case law in this area reveals (see majority op. at 6-9), only
the most unusual circumstances will justify the admission of a
defendant's post-arrest silence on the People's direct case, and
no such circumstances exist here.   However, unlike the majority
(see majority op. at 12-14), I find that the error was harmless
on account of the overwhelming quality of the proof against
defendant and the limited prejudice occasioned by the evidence of
his silence.   While I acknowledge that reasonable minds may
differ on the harmless error issue presented by this case, my
disagreement with the majority on this subject nonetheless
prompts me to respectfully dissent.
           As the majority rightly points out (see majority op. at
6, 10-12), evidence of post-arrest silence has limited probative


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                               - 2 -                        No. 34

value and risks improperly prejudicing a defendant by causing the
jurors to speculate that the defendant remained silent in an
effort to hide his or her guilt (see Conyers, 52 NY2d at 459).
But, here, defendant's silence in the face of police questioning,
which should have been excluded from evidence, was scarcely any
more harmful than the properly admitted evidence that he had
revealed his knowledge of the breaking and entering aspect of the
crime at a time when such knowledge could only have flowed from
his participation in the offense.
          In that regard, defendant's girlfriend told the police
and, later, the jury, that on the day of the crime, defendant had
pretended to be a police officer in order to convince her to open
the door to her apartment.   When she opened the door and saw
defendant, she tried to close it again, but he pushed it open to
force his way into the apartment, at which point she succumbed to
a combination of his physical effort and oral entreaties.   During
their interview with defendant, the police did not disclose this
information to him.   Nonetheless, defendant told the police,
"Honestly, do you think that I just broke the door down?"   At the
Huntley hearing, the court ruled this statement admissible, and
therefore the jury properly received it regardless of whether
they should have learned of defendant's post-arrest silence.
Having heard that statement, the jury surely would have inferred
that defendant was conscious of his own guilt insofar as he knew
that he had used a ruse and then physical force to effectively


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break into the apartment to commit the crime.   Consequently, the
forbidden evidence of defendant's post-arrest silence did not
significantly impact the outcome of the trial because, absent
that evidence, the jury still would have drawn an adverse
inference from defendant's interactions with the police based on
the admissible evidence (see People v Crimmins, 36 NY2d 230, 242
[1975]).
           Furthermore, the evidence of defendant's guilt was
overwhelming (see id.; see also People v Boop, 118 AD3d 1273,
1273 [4th Dept 2014], lv denied 24 NY3d 1082 [2014]; see
generally Conyers, 49 NY2d at 183).    After all, even without the
contested proof of defendant's silence, the jury still would have
received the following fully admissible testimonial evidence: (1)
defendant's girlfriend's consistent testimony, which in essential
substance matched her statement to the police, that defendant had
used a ruse to convince her to open the door to the apartment,
that he had pushed the door open when she tried to close it on
him, that he had brutally raped her, that she had called a friend
to come to her aid and that she had reported the rape to the
friend, who called the police; (2) the testimony of the friend,
Nicole Veaudry, that the girlfriend had summoned her to the
apartment immediately after the incident, had reported that
something had occurred, had been shaking and crying, and had
prompted Veaudry to call the police; (3) the testimony of police
officers that the girlfriend was still upset when they responded


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to the 911 call and that the bathroom sink in her apartment had
been dislodged; (4) the testimony that, in response to police
questioning, defendant said, "Honestly, do you think that I just
broke the door down?"; and (5) defendant's grand jury testimony,
in which he delivered an account of events that seemed to be
tailored to match the medical and other evidence, which he
admitted having reviewed prior to his testimony.
          Additionally, without knowledge of defendant's post-
arrest silence, the jurors still would have learned of the
following physical evidence and explanatory testimony: (1) DNA
evidence showing that defendant left his saliva on several of his
girlfriend's body parts during the incident; (2) physical
evidence of numerous cuts and a hand-shaped mark on the
girlfriend's body; (3) physical evidence of a laceration between
the girlfriend's vagina and anus; and (4) the Sexual Assault
Nurse Examiner's testimony that this injury had been caused by
blunt force trauma, that it was consistent with forcible sexual
assault and that, while it could have theoretically occurred
during consensual sex, the nature and location of the injury
rendered a consent scenario unlikely.   Given that the physical
evidence corroborated defendant's girlfriend's account of a
forcible rape and the testimonial proof thoroughly reinforced her
credibility while undermining defendant's, the evidence
overwhelmingly established defendant's guilt of the crimes of
which he was convicted.


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            In sum, while I certainly do not condone the People's
use of defendant's post-arrest silence against him, I conclude
that the error was harmless, for the introduction of that
evidence was not the likely source of his conviction.         Rather, it
was the highly persuasive and admissible proof of defendant's
guilt that ultimately led to the verdict here.        Furthermore, I
find defendant's remaining contentions to be either unpreserved
or lacking in merit.     Accordingly, I respectfully dissent and
vote to affirm the Appellate Division's order.
*   *   *    *   *   *    *   *    *      *   *   *   *   *   *   *    *
Order reversed and a new trial ordered. Opinion by Judge Fahey.
Chief Judge Lippman and Judges Read, Rivera and Stein concur.
Judge Abdus-Salaam dissents in an opinion in which Judge Pigott
concurs.

Decided April 7, 2015




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