This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 1
The People &c.,
            Respondent,
        v.
Gregory Vining,
            Appellant.




          Margaret E. Knight, for appellant.
          Ross D. Mazer, for respondent.




ABDUS-SALAAM, J.:
          The trial court did not abuse its discretion as a
matter of law in admitting a phone call between defendant and his
ex-girlfriend as an adoptive admission. Once the People satisfied
the threshold evidentiary requirements for admissibility, the

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                              - 2 -                            No. 1

call was properly placed before the jury to weigh its import and
significance. That the call was recorded while defendant was
incarcerated does not change our analysis.
                                  I.
          Defendant was charged with several counts of assault,
trespass and criminal mischief, all arising out of incidents
involving him and his ex-girlfriend. The proof at trial
established that they had a tumultuous relationship. The People
introduced evidence of separate crimes from different dates. One
involved defendant purposefully breaking the victim's cable box
and hitting her in the face; another involved him pushing her to
the ground and stomping on her chest, ultimately breaking two of
her ribs; and the third involved him entering her apartment
without her permission and remaining until he was arrested. As
the People conceded, the victim was not the most reliable
witness. She had problems with alcohol and drugs, a criminal
history which included violence toward other ex-partners, mental
health issues related to depression and schizophrenia, and had,
on more than one occasion, either lied to or been less than
forthcoming with the police and the District Attorney's Office.
She did not appear for her scheduled testimony at the start of
trial and had to be forcibly brought to court in handcuffs. The
jury was aware of these issues.
          During the trial, the court, upon the People's
application, allowed the prosecutor to play a telephone call made


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                                   - 3 -                       No. 1

from defendant to the victim while he was incarcerated. The
People sought to introduce the call as an adoptive admission by
silence, which defendant opposed. During the conversation, the
victim repeatedly accused defendant of breaking her ribs.
Defendant never denied the allegations, and instead gave non-
responsive and evasive answers. For example, after she forcefully
stated many times that he had broken her ribs and shown no
sympathy, his response was "so I'm a threat to you?" When she
said he needed time to think and change so he would not do this
to anyone else, he responded by asking whether his brother had
called her. They also discussed a potential jail sentence, when
he accused her of "not caring" if he got "a year."
          The trial court allowed defense counsel to craft a
limiting instruction, and counsel offered the following, which
the court read to the jury before the call was played and again
during its final charge:
          I'm allowing the conversation into evidence
          for the limited purpose of having you
          determine if such failure to respond and to
          remain silent is indeed an admission, and if
          you so find, give such admission whatever
          weight you deem appropriate in determining
          its significance.
          In making this determination, you should
          apply the same tests you would use in your
          own everyday life in doing so.
          You may wish to keep in mind, one, an
          individual['s] silence may be attributable to
          his awareness that he is under no obligation
          to speak.
          Two: An individual's natural caution that
          arises from his knowledge that anything he
          says may be used against him.
          Three: An individual may refrain from

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                              - 4 -                            No. 1

          speaking because he believes that efforts to
          exonerate himself under the circumstances
          would be futile.
          Now, to the extent that the telephone call
          references the potential jail sentence, the
          jury is to disregard that portion of the
          call.
          The jury found defendant guilty of attempted assault in
the third degree, assault in the third degree, criminal mischief
in the fourth degree, and criminal trespass in the second degree.
The Appellate Division modified the judgment in a manner not
relevant to this appeal, and otherwise affirmed, holding that the
trial court properly exercised discretion in admitting the call
(126 AD3d 623 [1st Dept 2015]). A Judge of this Court granted
defendant leave to appeal (26 NY3d 1093 [2015]), and we now
affirm.
                               II.
          An adoptive admission occurs "when a party acknowledges
and assents to something 'already uttered by another person,
which thus becomes effectively the party's own admission'"
(People v Campney, 94 NY2d 307, 311 [1999], citing 4 Wigmore,
Evidence § 1609, at 100 [Chadbourne rev]). Assent can be
manifested by silence, because "a party's silence in the face of
an accusation, under circumstances that would prompt a reasonable
person to protest, is generally considered an admission" (Robert
A. Barker & Vincent C. Alexander, Evidence in New York State and
Federal Courts § 8:17 [2016]; see also People v Koerner, 154 NY
355, 374 [1897] ["If he is silent when he ought to have denied,


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                              - 5 -                            No. 1

the presumption of acquiescence arises"]). We have also
recognized that "an equivocal or evasive response may similarly
be used against [a] party either as an adoptive admission by
silence or an express assent" (Campney, 94 NY2d at 316 [Smith,
J., dissenting], quoting 2 McCormick, Evidence, op cit., § 262,
at 176). Here, despite the dissent's characterization, defendant
was not silent in the face of the victim's accusations. He gave
"equivocal or evasive response[s]" (id.).
          Though we recognize that evidence of a party's silence
or evasiveness can have "minimal probative significance" and a
"substantial" risk of prejudice (People v Conyers, 52 NY2d 454,
458-459 [1981]), our rules of evidence allow that "manifestations
made in response or reaction to an accusatory overture, which may
be generally inadmissible, may be received into evidence,
nevertheless, to establish a relevant demonstrative response of
the affected party" (Campney, 94 NY2d at 312). Further, the
"danger" of the potential ambiguity of a party's silence is not
as strongly implicated where, as here, "a verbalized response is
involved, not a failure to speak" (id. at 313).1


     1
      The dissent interprets our holding in Campney too narrowly.
By stating that "[a]pplying standard principles, we conclude that
the trial court appropriately permitted the jury to consider
whether defendant adopted his accomplice brother's written
statement" (Campney, 94 NY2d at 310), we did not hold that these
"standard principles" should be limited solely to a case with the
particular facts of a defendant adopting his accomplice brother's
written statement, as the dissent here suggests. Instead, we
apply these standard evidentiary principles to the facts before
us, as we did in Campney, and conclude that the trial court

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                              - 6 -                            No. 1

          To use a defendant's silence or evasive response as
evidence against the defendant, the People must demonstrate that
the defendant heard and understood the assertion, and reasonably
would have been expected to deny it (see People v Allen, 300 NY
222, 225 [1949]). As with almost all evidence, "[t]he
determination whether a threshold foundation has been established
for the admissibility of the declaration or manifested act is
made by the trial court, in light of 'all the facts and
circumstances surrounding the incident,' while the 'value or
effect of this evidence' is weighed by the jury" (Campney, 94
NY2d at 312, quoting People v Ferrara, 199 NY 414, 430 [1910]).
The threshold question of whether a defendant heard and
understood another party's accusations involves a "factual and
inferential weighing responsibility" for which "[t]he trial court
is the proper forum" (id. at 312-313).
          Here, it is clear that the trial court did not abuse
its discretion as a matter of law when it made the threshold
determination that defendant heard and understood the victim's
accusations against him. The court properly concluded that the
content of the conversation, itself, demonstrates that defendant
both heard and understood what she was saying, but chose to give
evasive and manipulative responses. This view is supported by the
context of the call, where, in a domestic violence case,



similarly "appropriately permitted the jury to consider" whether
defendant adopted the victim's statement.

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                              - 7 -                            No. 1

defendant voluntarily contacted the victim in violation of an
order of protection in an attempt to influence her to drop the
charges against him. Once this foundation was established, it was
proper for the call "to be placed before the jury so that the
jury might weigh the import, along with its other instructions
and responsibilities" (id. at 313).
          Though we are mindful of case law suggesting that
evidence of a defendant's silence "may have a disproportionate
impact upon the minds of jurors" (Conyers, 52 NY2d at 459), here,
we are satisfied that the jury was fully equipped to assess the
significance and dynamics of this phone call. At the outset,
during the call, defendant was not silent, but responded to the
victim's accusations. Further, at trial, the jury heard evidence
of the rocky relationship between them, and was aware of the
allegations of domestic violence. In response, defendant attacked
the victim's credibility and suggested she had a motive to lie.
The jury knew that she had problems with alcohol and drugs, that
she had mental health issues, and that she had been less than
truthful about defendant's actions before. In this context, the
jurors could, in the simple exercise of their common sense,
understand the significance of the call.
          Finally, defendant argues that it was error for the
court to deny his request to redact that portion of the call
which references, incorrectly, defendant's sentencing exposure.
However, in this domestic violence case, the mention of a


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                              - 8 -                           No. 1

potential prison term was inextricably intertwined with
defendant's purpose of calling the victim to manipulate her to
drop the charges against him ("Oh, so you don't care if I get a
year?"). We conclude that the court did not abuse its discretion
as a matter of law in declining to redact this portion of the
call. And with respect to this issue, as with admission of the
call, any potential prejudice was mitigated by the court's
thorough limiting instruction, crafted by defense counsel.
                              III.
          Defendant and the dissent urge that despite our state
evidentiary law's allowance of adoptive admissions, this call
should not have been admitted because it was made while he was
incarcerated. Because all of his calls were recorded and
monitored by the Department of Correction, a reality he was aware
of, he argues that this conversation was akin to silence in the
face of interrogation. We decline to adopt this view. As we
recently explained, "[d]efendant was not induced by any promise,
or coerced by the Department, to call [the victim] and make
statements detrimental to his defense. . . . [and] the mere act
of recording is no different from an informer sitting mute, not
provoking or prompting conversation but merely listening to a
statement freely made" (People v Johnson, 27 NY3d 199, 206
[2016]). Notably, the adoptive admission from Campney was made in
an interrogation room, in the presence of several police officers
(though not in response to any question from an officer). Here,


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                              - 9 -                            No. 1

defendant voluntarily contacted and engaged in a conversation
with a civilian. That his evasive responses were made during a
call while he was incarcerated does not render them the product
of an interrogation or its functional equivalent. Under the
circumstances of this case, where defendant voluntarily called
his accuser in violation of an order of protection to persuade
her to drop the charges, the call was not the product of
interrogation or its functional equivalent. As always, "the trial
judge's role as gatekeeper remains unchanged and necessary to
ensure compliance with constitutional mandates and the usual
rules of evidence and criminal procedure" (Johnson, 27 NY3d at
208).
                               IV.
          We have considered defendant's remaining contentions
and find them unpreserved. Accordingly, the Appellate Division
order, insofar as appealed from, should be affirmed.




                              - 9 -
People v Vining
No. 1




RIVERA, J.(dissenting):
          I disagree with the majority that defendant, while a
pretrial detainee in custody on Rikers Island who was informed
both of his Miranda rights and that his telephone calls were
routinely recorded by law enforcement, acquiesced to his intimate
partner's accusations during a monitored conversation because he
failed to deny her statements.    We have long recognized that an
accused's pretrial silence is generally prejudicial and
inadmissible. Yet, the trial court below erroneously admitted
into evidence, as an adopted admission by silence, a recording of
the Rikers Island telephone call between defendant and the
victim. The circumstances of defendant's detention do not justify
an inference of defendant's acquiescence, and the use of the
recording here is nothing more than an improper attempt to allow


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                              - 2 -                            No. 1

a jury to infer an admission from the silence of a defendant
where such silence has no probative value (see generally People v
De George, 73 NY2d 614 [1989]; People v Conyers, 52 NY2d 454
[1981]). The majority's reasoning is contrary to both our law and
principles of fairness because any inference of an admission from
an inmate's silence during these recorded conversations is
presumptively unsound, and therefore I dissent.
          According to well-established state evidentiary rules,
the People generally may not use either in its case-in-chief or
for impeachment a defendant’s pretrial silence, meaning a
defendant’s failure to speak or to assert affirmatively innocence
in the face of inquiry by law enforcement (People v Rutigliano,
261 NY 103, 107 [1933]; Conyers, 52 NY2d at 459).*   This
proscription on the use of silence recognizes that "a defendant's
silence is generally ambiguous and 'of extremely limited
probative worth'" (People v Williams, 25 NY3d 185, 191 [2015],

     *
      The majority seems to misapprehend our case law on this
point by suggesting that adopted admissions by silence should be
treated differently than adopted admissions by elusive non-
responses (majority op at 5). Our court has long held that the
touchstone of the adopted admission by silence jurisprudence is
the "failure to deny, or to make immediate positive denials" when
faced with accusation (see People v Allen, 300 NY 222, 226
[1949]; see also People v Williams, 25 NY3d 185, 189, 193-194
[2015] [holding that it was error for the prosecutor to invite
jurors to consider defendant's failure to deny an accusation as
evidence of guilt]). Accordingly, the People sought admission of
this evidence as an adopted admission by silence and the trial
court admitted it as such. Therefore, despite the majority's
assertion to the contrary (majority op at 5), defendant's elusive
or non-sequitur responses to the victim's accusations constitute
"silence."

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                               - 3 -                            No. 1

citing Rutigliano, 261 NY at 106-107). Silence is especially weak
evidence of guilt because a defendant may stand mute in the face
of a direct accusation for a number of reasons unrelated to
actual criminal culpability (Conyers, 52 NY2d at 458).   For
example, a defendant may feel no need to respond to what
defendant maintains is an unsupported, baseless allegation for
which denial would be futile; a defendant may be uncertain what
to say and fear any response will be misinterpreted and used
against them; a defendant may distrust law enforcement; or, a
defendant may simply choose to invoke the constitutional right to
remain silent (id.).   Yet, "there is a substantial risk that
jurors might 'construe such silence as an admission and . . .
draw an unwarranted inference of guilt'" (Williams, 25 NY3d at
191, quoting Conyers, 52 NY2d at 458-459). This rule is not
predicated on any misconduct by law enforcement, but reflects the
commonsense view that, under these circumstances, pretrial
silence lacks probative value and the potential for prejudice, as
outlined above, outweighs any probative worth of the evidence
(Conyers, 52 NY2d at 459).
          These same concerns are no less relevant when a
defendant is an inmate and well-aware that the government is
monitoring a recorded conversation with a witness or codefendant,
obviating any expectation of privacy while affirming the fear of
self-incrimination (see Rutigliano, 261 NY at 105-106, citing
Commonwealth v McDermott, 123 Mass 140 [1877] and McCarthy v


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                              - 4 -                             No. 1

United States, 25 F2d 298 [6th Cir 1928]).    Whether a law
enforcement official asks the question, or is merely listening to
another's accusation, a defendant's silence is ambiguous and
prejudicial (see e.g. People v Koerner, 154 NY 355, 375-376
[1897] [remitting for a new trial when the trial court allowed
evidence of a witness's accusation to law enforcement in the
presence of the defendant but, under the circumstances, the
defendant would not naturally have protested]).
          The entirely separate evidentiary doctrine upon which
the majority relies, the hearsay exception for adoptive
admissions, cannot supplant the prohibition against the admission
of a defendant's pretrial silence.    Here, the trial court's
admission of defendant's post-accusatory, pretrial silence in
response to allegations made in a recorded Rikers Island phone
call as direct evidence of guilt violated state evidentiary law,
and the inquiry ends there.
          Nevertheless, even under the adopted admission
exception to hearsay, it was error to admit the recorded
conversation. "[A]ccusatory statements, not denied, may be
admitted against the one accused, as admissions but only when the
accusation was 'fully known and fully understood' by defendant,
and when defendant was 'at full liberty to make answer thereto,
and then only under such circumstances as would justify the
inference of assent or acquiescence as to the truth of the
statement by his remaining silent'" (People v Allen, 300 NY 222,


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                               - 5 -                           No. 1

225 [1949], quoting Koerner, 154 NY at 374 and People v Conrow,
200 NY 356, 367 [1911]; see also People v Campney, 94 NY2d 307,
311-312 [1999]).   The circumstances must be "such as would
properly or naturally call for some action or reply from
[persons] similarly situated" (Koerner, 154 NY at 374).     Silence
is not assent "unless the statements were such as to properly
call for a response" (id.).   Application of the rule in criminal
cases "is to be applied with careful discrimination" as
"'[r]eally it is the most dangerous evidence'" (id.).     As the
Court explained more than a century ago, this evidence "should
always be received with caution, and ought not to be admitted
unless the evidence is of direct declarations of a kind which
naturally call for contradiction, or some assertion made to a
party with respect to [the party's] rights, in which by silence
[the party] acquiesces"   (id. at 374-375).   Where the
circumstances are such that an inference of acquiescence cannot
be drawn, as in where the evidence belies just such inference,
the statements do not fall within the rule and their admission is
error (Conrow, 200 NY at 367, citing People v Kennedy, 164 NY 456
[1900], People v Smith, 172 NY 210 [1902], and People v Cascone,
185 NY 317 [1906]).
          Here, the circumstances not only do not establish tacit
acquiescence, but they also contradict any such inference.     At
the time of the telephone call, defendant was a pretrial detainee
on Rikers Island, and there is no dispute that he had been


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                                - 6 -                           No. 1

advised of his right to remain silent under Miranda v Arizona
(384 US 436, 467-468 [1966]).   Defendant had access only to
telephones monitored by the New York City Department of
Correction (DOC).   There can be no question that defendant was
made aware that his calls were monitored and could be made
available to the District Attorney's Office upon request for use
in his prosecution.   This Court recently described how Rikers
detainees are notified in writing and by audio telecommunications
that a call on a Rikers telephone is not private (see People v
Johnson, 27 NY3d 199, 203 [2016]).      The Inmate Handbook provided
to all persons upon admission to Rikers Island states "that calls
may be recorded and/or monitored" (id.).     The signs posted near
the Rikers' telephones warn: "Inmate telephone conversations are
subject to electronic recording and/or monitoring in accordance
with [DOC] policy. An inmate's use of institutional telephones
constitutes consent to this recording and/or monitoring" (id.).
A detainee using the telephone will hear a recorded advisement
that "this telephone call may be recorded and monitored" (id.).
          Furthermore, attorneys are well aware of the Rikers'
telephone monitoring and use of recorded conversations in
prosecutions and for plea bargaining purposes, and advise
detainees accordingly.   Indeed, the very same District Attorney’s
Office that prosecuted defendant and appears in the instant
appeal, represented in Johnson that defendants should be assumed
to understand that they are being monitored by law enforcement:


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                              - 7 -                            No. 1

"this type of evidence collection has been so well documented
that it blinks reality to assume that defendants are not informed
by their attorneys, at arraignments, that their unprivileged
conversations will be recorded by DOC and provided to the
prosecutor upon request" (Brief for Respondent in Response to
Amicus Curiae, People v Johnson, 27 NY3d 199 [2016], at 4).
          Given defendant's awareness of his rights under Miranda
and the multiple Rikers' warnings, an inference that defendant
adopted the victim's accusatory statements is unjustified.     A
detainee who is informed that he has a right to remain silent
before law enforcement and that all telephone statements are
recorded and may be used against the detainee by the District
Attorney would understand that a "verbalized response" –- not
silence –- is a perilous course, placing any defense at risk.
The natural reaction under these circumstances is to maintain
silence, not to deny and contradict the accusations (see Conyers,
52 NY2d at 458; see also Williams, 25 NY3d at 191).   As the
District Attorney in Johnson recognized: "[g]iven the notices
that the prisoners signed, read on the wall and heard as they
made their telephone calls, it is clear that far from taking
secretive action to elicit incriminating statements, DOC took
overt steps that would actually deter the prisoners from making
such statements" (Brief for Respondent, People v Johnson, 27 NY3d
199 [2016], at 41 [emphasis added]).   To avoid the use of
incriminating evidence, a defendant should "refrain from


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                               - 8 -                          No. 1

discussing the case over the telephone with anyone but [defense
counsel]" (id. at 43).   The concurring opinion in Johnson also
noted that the People's alternative was "essentially, don't talk
to anyone other than your attorney about anything related to your
case unless you want the prosecutor to know about it" (Johnson,
27 NY3d at 211).   The District Attorney, and the majority, cannot
ignore when a defendant comports with this advice.
          The majority's analysis relies on a misapplication of
this Court's reasoning in People v Campney (94 NY2d 307 [1999])
and recharacterizes in sweeping language the Court's narrow
holding, which was limited to the use of circumstantial evidence
to infer a defendant's adoption of an accomplice's written
confession.   Campney neither involved a defendant's silence, nor
sanctioned the routine use of evidence as an adoptive admission
where a defendant says nothing.   Rather, the case stands for the
proposition that circumstantial evidence of a defendant's conduct
and speech may support an inference that the defendant has
adopted inculpatory statements (id. at 313).   The trial court
admitted circumstantial evidence to prove that the defendant had
read his brother's written and signed statement to police
confessing to the crime (id. at 312).   After the brother gave the
police a verbal statement, he asked to speak with defendant and
the police left the two alone in an interrogation room for 10-15
minutes (id.).   When the police returned, they observed defendant
holding the written statement (id.).    When an officer asked the


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                                - 9 -                           No. 1

brother if he was ready to sign the statement, the brother asked
the defendant what he should do, and the defendant responded,
"you might as well sign it, you already told them all about what
happened" (id.).   The Court affirmed the admission of defendant's
exclamation to his brother and the written statement as an
adoptive admission (id.).    The Court concluded based on the
circumstantial evidence that the lower court "had enough before
it to deduce that defendant had read or been informed of the
contents of the statement, understood its implications, and
affirmatively adopted the statement as his own" (id. at 313).
            In reaching the holding in Campney, the Court expressly
distinguished the jurisprudence on acquiescence by silence
because the "defendant explicitly manifest[ed] an awareness of a
statement and acceptance of the import of its contents" (id.
[emphasis in original]).    The adoptive admission was justified
because the dangers highlighted in prior cases and associated
with acquiescence by silence are not present "where a verbalized
response is involved, not a failure to speak" (id.).    Here,
however, the trial court admitted the Rikers telephone call based
on defendant's silence, not a verbalized response acknowledging
the accusations or suggesting an adoption of the alleged
wrongdoing.   Thus, Campney does not support the majority's
analysis.   Indeed, it reinforces our long standing recognition
that evidence of a defendant's silence is of no probative value,
while being prejudicial and inherently ambiguous.


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                               - 10 -                            No. 1

            The trial court's error in admitting the telephone
conversation as a tacit admission was not harmless, particularly
because the recording also contained a prior consistent statement
of a victim whose credibility was the primary focus of the case.
"An error of law may be found harmless where 'the proof of the
defendant's guilt, without reference to the error, is
overwhelming' and where there is no 'significant probability
. . . that the jury would have acquitted the defendant had it not
been for the error'" (People v Crimmins, 36 NY2d 230, 241-42
[1975]).    An error is typically harmless when the challenged
evidence was not the People's key piece of evidence (see People v
Arafet, 13 NY3d 460, 468 [2009]).
            Here, where the jury acquitted defendant of certain
charges based on the victim's testimony, the evidence of
defendant's guilt was not overwhelming.    The medical evidence
placed the injury as having occurred within the three weeks
before the victim went to the hospital, which did not contradict
defendant’s claim that another boyfriend of the victim caused the
injury.    However, most damaging to the People's case was the
credibility of the victim, their key witness, who, in the words
of the prosecutor, was "a disaster."    Defense counsel impeached
the victim by highlighting her prior inconsistent statements,
drug addiction, and prior convictions for violence against other
intimate partners.    In summation, the prosecutor asked the jury
not to rely alone on the victim, an obvious concession to the


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                              - 11 -                            No. 1

weakness of the People's case. "I know [the victim] is a
disaster. I know that. However, I am not asking you to just rely
on her. She has a lot of issues but I’m not just asking you to
rely on her in this case . . . ."   The prosecutor, recognizing
that a defendant's silence when accused of wrongdoing is
powerful, expressly advocated that the jury rely on the
defendant’s failure to speak against the accusation as proof of
his guilt.   The prosecutor further argued that defendant's
silence while being recorded established his guilt because anyone
would have spoken out under those circumstances: "[E]ach inmate
is put on notice that their calls are recorded. There are signs
posted near all of the telephones that say they are recorded. If
you knew that you were being recorded and you were innocent,
wouldn’t that be all the more reason for you to deny it? . . . He
couldn’t deny it to her because she was there. Because she was
there when he did that to her."   Thus, although the majority
maintains that defendant's awareness that his calls were
monitored is irrelevant (majority op at 6-7), the prosecutor used
this fact persuasively before the jury.
          This was a case of intimate partner violence with no
witness to the assault, so the case turned on who the jury
believed (e.g. People v Delamota, 18 NY3d 107, 116 [2011]).
Where the victim's credibility was suspect, the medical evidence
established a three week window for the assault, and the
prosecutor's summation advocated guilt based on defendant's


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                                  - 12 -                              No. 1

silence, the proof of guilt was not overwhelming and a
significant probability exists that the jury would have acquitted
the defendant had the court not erroneously admitted evidence of
the telephone call –- a call which contained a prior consistent
statement used to bolster the victim's credibility.         I would
reverse the Appellate Division's order affirming defendant's
conviction.
            As this case illustrates, it is inherently unfair to
inform a Rikers Island detainee that telephone calls are being
monitored by the government and may be used as evidence against
the detainee by the prosecution, only to penalize the detainee
who elects not to speak during a recorded telephone call.          Now,
despite this Court's continual acknowledgment of the limited
probative value of a defendant's silence in these circumstances,
and the inherent prejudice that may result from admitting
evidence of a defendant's silence, the majority penalizes
defendant for choosing not to speak, a conclusion not supported
by our law or notions of fairness.
            I dissent.
*   *   *     *   *   *   *   *     *      *   *   *   *   *   *   *      *
Order, insofar as appealed from, affirmed. Opinion by Judge
Abdus-Salaam. Judges Stein, Fahey and Garcia concur. Judge
Rivera dissents in an opinion in which Chief Judge DiFiore
concurs. Judge Wilson took no part.

Decided February 14, 2017




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