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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 147
The People &c.,
            Respondent,
        v.
Charles K. Wilson,
            Appellant.




          Kathleen P. Reardon, for appellant.
          Robert J. Shoemaker, for respondent.




PIGOTT, J.:
          In People v Harris (25 NY2d 175 [1969], affd 401 US 222
[1971]), this Court held that a statement obtained in violation
of a defendant's rights under Miranda v Arizona (384 US 436
[1966]) may be utilized for impeachment purposes on the cross-
examination of a defendant whose testimony is inconsistent with

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the illegally obtained statement (see Harris, 25 NY2d at 177; see
also People v Johnson, 27 NY2d 119, 121-122 [1970], cert denied
401 US 966 [1971]; People v Kulis, 18 NY2d 318 [1966]).         In this
appeal, defendant advocates for a bright-line rule that would
preclude the People from utilizing on cross-examination or
rebuttal any statement provided by the defendant to the police
after the defendant refuses to waive his Miranda rights.         We
decline defendant's invitation to adopt such a rule, and affirm
the order of the Appellate Division.
                                 I.
             On September 14, 2006, at approximately 9:00 p.m.,
complainant and three children were entering a home they shared
when they were confronted by two armed men.     The men demanded
that complainant empty his pockets.      Although complainant
complied, one of the intruders shot him and one of the children.
The intruders took complainant's wallet and car keys and fled the
house.   One of the children locked the door, but an unidentified
individual returned, kicked in the front door to gain entry, and
shot complainant twice in the head.
             Two days after the incident, investigator Matthew Hill
showed a photo array to one of the child witnesses.     The child
pointed to a photo of defendant and stated that "it kind of looks
like him."    Five days later, Hill showed the same witness a
different array containing a more up-to-date photograph of
defendant, and the child pointed to the photo and said, "that


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looks just like him."
           On October 11, 2006, Hill prepared a photo array that
was shown to complainant, who had since come out of a coma.       The
photo array utilized the up-to-date photo of defendant.
Complainant identified defendant as one of the intruders.
Approximately two weeks later, police took defendant into
custody.   The child witness who had previously identified
defendant from the photo array viewed a six-person lineup and
identified defendant as one of the armed intruders.    Defendant
was transported to the public safety building for further
questioning.
           Prior to interviewing defendant, Hill read defendant
his Miranda rights.     Defendant stated that he understood the
rights and exercised his right not to speak with Hill.    At that
point, Hill told defendant that he was being charged for the
shootings that had occurred on September 14, 2006.    According to
Hill, defendant "acted surprised like he didn't know what [Hill]
was talking about," so Hill apprised defendant of the charges and
of the fact that he was being charged with a codefendant.
Investigator Brian Tucker, who was also in the interview room,
asked defendant if he knew the codefendant, and defendant
responded that he did not.    Defendant again "acted surprised," so
Hill stated, "well, you must know what I am talking about because
this guy [the codefendant] . . . had shot himself at some point
after the incident."    At that point, defendant stated that the


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                                 - 4 -                       No. 147

codefendant had not shot himself because "nobody shoots
themselves there like that" and acknowledged that he knew
codefendant.
          In an 11-count indictment, defendant and codefendant
were charged with attempted murder in the second degree and
various assault, robbery and burglary counts.    The People served
a CPL 710.30 notice upon defendant concerning defendant's post-
Miranda statements.     As relevant here, defendant moved for a
Huntley/Wade hearing seeking suppression of defendant's
statements and the witness identifications.    The People withdrew
their CPL 710.30 notice and stipulated that they would utilize
defendant's statements only for cross-examination purposes should
defendant choose to testify.    In response, defendant moved to
convert his suppression motion to a preclusion motion, arguing
that should defendant opt to testify, the People should be
precluded from using the statements he made to police for
impeachment purposes because they were obtained in violation of a
constitutional right.
          At a hearing on the issue, Hill and Tucker testified as
to the substance of defendant's post-Miranda statements.     Defense
counsel argued that it was the "plan or design" of the police to
knowingly continue to question defendant after he had invoked his
Miranda rights so as to preclude defendant from taking the stand.
Defense counsel claimed that if it could be shown that the
investigators continued interrogating defendant in bad faith,


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then the People could not use any evidence from that impropriety
on cross-examination or rebuttal.    County Court permitted defense
counsel to question the investigators about the circumstances
surrounding the making of the statements.   During that testimony,
Hill acknowledged that once defendant invoked his Fifth Amendment
rights, he knew that defendant did not wish to speak.   Hill also
stated that he knew that once a defendant invokes such rights
anything the defendant states may not be used on direct
examination, but that statements obtained after the invocation of
Miranda could be used on cross-examination or rebuttal.     County
Court, finding defendant's statements to have been voluntarily
made, denied defendant's motion to preclude the People's use of
the statements on cross-examination or rebuttal.
          The matter proceeded to trial.    Defendant did not
testify or call any witnesses.    He was ultimately convicted of,
among other things, attempted murder in the second degree, and
sentenced to an aggregate term of 50 years.   The Appellate
Division modified by reversing that part of the judgment
convicting defendant of attempted murder in the second degree,
dismissing one burglary count and ordering the sentences on the
remaining counts to run concurrently as to each other (resulting
in an aggregate sentence of 25 years), and otherwise affirmed
(120 AD3d 1531, 1532 [4th Dept 2014]).   As relevant here, the
Appellate Division held that County Court "did not err in
determining that defendant's statements to the police during a


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brief exchange, made by defendant after he refused to waive his
Miranda rights, were voluntary and thus were admissible for
impeachment purposes" (id. at 1533 [citations omitted]).1
          A Judge of this Court granted defendant leave to
appeal.
                                 II.
          It is undisputed that the statements made by defendant
to police were made after he had invoked his Miranda rights, and,
thus, the People were prohibited from using the statements in
their case-in-chief (see People v Wise, 46 NY2d 321, 329 [1978];
Harris, 25 NY2d at 177).    Defendant argues that this rule does
not go far enough, and advocates for a rule that precludes the
People from utilizing post-invocation statements on cross-
examination or rebuttal for impeachment purposes should a
defendant opt to testify.
          This Court has long held that if a statement made by
the defendant to the police is voluntary, it may be used for
impeachment purposes; but if a statement is involuntary, it will
not be admissible, even if it may be deemed reliable (see People
v Maerling, 64 NY2d 134, 140 [1984]; People v Walker, 110 AD2d


     1
        Defendant also appealed County Court's determination that
the manner in which the photo arrays were shown to complainant
and the child witness, and the line-up procedure employed by the
police, were not unduly suggestive. The Appellate Division held
that County Court did not err in refusing to suppress the
identification evidence (120 AD3d at 1533). We have considered
defendant's challenge to that determination and conclude that it
is without merit.

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730, 732 [2d Dept 1985], affd for reasons stated 67 NY2d 776
[1986] [where statements are involuntarily obtained through
coercion, such statements are inadmissible for use on cross-
examination or rebuttal]).
           The rule proposed by defendant would render
inadmissible for impeachment purposes any statement elicited by
law enforcement after the defendant invokes the right to remain
silent.   The adoption of such a rule, however, would require us
to overrule our own decision in Harris and its progeny, and would
effectively sanction perjury on the part of a testifying
defendant by permitting the defendant to offer testimony that is
inconsistent or at odds with the defendant's prior statements
(see Harris, 401 US at 226; see also Kulis, 18 NY2d at 323).
           Here, County Court determined that the statements were
voluntary and the Appellate Division affirmed that determination.
Hill acknowledged that he was aware of the Harris decision and
understood that defendant's post-Miranda statements could not be
used by the People in their case-in-chief but could be utilized
by the People for impeachment purposes.   However, there is
nothing in the record to support defendant's contention, in
reliance on People v Nelson (189 Misc 2d 362, 365 [Monroe County
Ct 2001]), that Hill consciously circumvented defendant's
invocation of his Fifth Amendment rights or otherwise rendered
defendant's statements involuntary as a matter of law.   Thus, it
cannot be said that County Court abused its discretion in denying


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defendant's motion to preclude the People from utilizing the
statements on cross-examination or rebuttal.        Accordingly, the
order of the Appellate Division, insofar as appealed from, should
be affirmed.
*   *   *   *   *   *   *   *    *      *   *   *    *   *   *    *    *
Order, insofar as appealed from, affirmed. Opinion by Judge
Pigott. Chief Judge DiFiore and Judges Rivera, Abdus-Salaam,
Stein and Garcia concur. Judge Fahey took no part.

Decided October 25, 2016




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