This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 159
The People &c.,
             Respondent,
        v.
Lyxon Chery,
             Appellant.




          Marisa K. Cabrera, for appellant.
          Patricia Curran, for respondent.




DiFIORE, Chief Judge:
          The issue presented by this appeal is whether it was
error to allow the People to use defendant's selective silence,
while making a spontaneous postdetention statement to the police,
to impeach his trial testimony.   We hold that, under the
circumstances presented, impeachment through cross-examination


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was permissible in order to challenge the credibility of
defendant's trial testimony as to the events that had transpired
at the scene.
          Shortly after midnight on April 20, 2012, defendant and
another man attacked complainant, the lone employee in a small
grocery store, while he was closing the store for the night.*
Defendant robbed complainant of $215.      Two witnesses, who
testified at trial, observed the altercation between defendant
and the complainant.   When the responding officer arrived at the
scene, he saw defendant with a sharp metal object in his hand and
also observed a long wooden board on the sidewalk.      In addition,
the officer noticed that complainant had sustained injuries.        The
police initially placed both men in handcuffs but, after speaking
with complainant and the witnesses, arrested only defendant.
When the officer searched defendant, he recovered an envelope
containing $215 from defendant's pocket.
          Prior to trial, the court denied defendant's motion to
suppress the statement defendant made to the responding officer
at the scene, concluding that the statement "was spontaneous and
not the product of investigation."      Thus, at trial, the
responding officer was permitted to testify that "defendant asked
me why isn't [complainant] going to jail, he kicked my bike, he
should be going to jail too."


     *
       The testimony at trial was that the accomplice fled the
scene before the police arrived.

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          Defendant testified on his own behalf.       Before
defendant began testifying, the prosecutor asked the court in
advance for a short break to follow the direct testimony.        The
prosecutor told the court that, depending upon the content of
defendant's testimony, "I may . . . request some kind of motions
after he testifies, opening doors, things like that."
          Defendant then testified that, prior to the
altercation, he had been outside the store with a friend.
Defendant claimed that, after the friend drove away, and while
defendant was packing up to leave, defendant saw complainant
chasing two teenage girls from the store and cursing at them for
trying to steal from the store.    Defendant related that he told
complainant, in essence, that it was not good for business to
treat people that way.   Defendant testified that complainant then
began kicking defendant's bicycle and that complainant hit him on
the head with a piece of wood.    According to defendant, the two
men were struggling over control of the wooden board when the
police arrived and separated them.       When asked if he told the
police "what was going on?", defendant testified that he told the
police officer at the scene that complainant "was kicking my
bike, and then we got into a fight, and if he come with the wood,
that's not my wood, that's his wood."
          After defendant's direct testimony, the prosecutor
asked the court for permission to impeach him on cross-
examination with the omissions from his initial, spontaneous


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statement to the police.   The prosecutor asserted that, based on
People v Savage (50 NY2d 673 [1980]), defendant was subject to
impeachment because he had testified to certain events that were
not included in his initial statement (i.e., complainant striking
him with the wooden board) and "which logically would have been
said to the police when they arrived on the scene."   The
prosecutor further maintained that the situation presented here
-- where a defendant provides a statement to the police at the
scene and a different recitation of events at trial -- was
distinguishable from the situation presented when a defendant
remains silent.   Defense counsel argued that Savage was
distinguishable because the defendant in Savage had received
Miranda warnings prior to making his statement.   After initially
expressing its own concerns that the impeachment could impact
defendant's right to remain silent, the court concluded that this
situation fell within the Savage rule and granted the
application.
          Without any further objection from defense counsel, the
defendant on cross-examination contradicted himself, testifying
both that he told the police that complainant had hit him with a
wooden board and that he did not tell the police about being hit
with the board.   He testified that he did not tell the police
about the two teenage girls being chased from the store.
Moreover, defendant reiterated that he told the police that
complainant had been "kicking my bike" and should be "go[ing] to


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jail too."
          The jury convicted defendant of robbery in the first
degree and two counts of robbery in the second degree.    The
Appellate Division affirmed (127 AD3d 533 [1st Dept 2015]).     The
Court concluded that the unnatural omissions from defendant's
spontaneous statement to the police at the scene were the proper
subject of impeachment.   A Judge of this Court granted defendant
leave to appeal (25 NY3d 1199 [2015]) and we now affirm.
          As an initial matter, because this case involves
defendant's silence in conjunction with his spontaneous,
postdetention statement, this is not a case that implicates
defendant's constitutional right to due process or to remain
silent (see Jenkins v Anderson, 447 US 231 [1980]; Doyle v Ohio,
426 US 610 [1976]).   Rather, we consider the propriety of the
People's use of defendant's significant omissions for impeachment
purposes under our state's rules of evidence (see e.g. People v
Conyers, 52 NY2d 454, 457 [1981]; Savage, 50 NY2d at 678).
          As we have recently restated, "[i]t is a well-
established principle of state evidentiary law that evidence of a
defendant's pretrial silence is generally inadmissible" (People v
Williams, 25 NY3d 185, 190 [2015]).    This rule applies both to
the People's direct case and, "absent unusual circumstances," to
impeachment of defendant's trial testimony (see 25 NY3d at 191).
The reasoning behind this restriction is that, "a defendant's
silence is generally ambiguous and 'of extremely limited


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probative worth'" (25 NY3d at 191, quoting Conyers, 52 NY2d at
458).
          We have recognized a narrow exception to the general
rule when the defendant has not, in fact, remained silent.       Thus,
in Savage, we held that "when given circumstances make it most
unnatural to omit certain information from a statement, the fact
of the omission is itself admissible for purposes of impeachment"
(50 NY2d at 679).   There, after receiving his Miranda warnings,
Savage made statements to the police indicating that he had shot
another man during an altercation.     However, at trial, Savage
testified that the basis of the altercation underlying the
shooting was the victim's attempt to rob him and that his
discharge of the weapon had been accidental.     We held that,
although the prosecution is not permitted to advocate that the
jury draw any adverse inferences from a defendant's postarrest
silence, "in a case like the one before us today, where we deal
with a defendant who did not stand mute, evenhanded logic
dictates that time-tested evidentiary procedures for the
ascertainment of truth not be ignored" (50 NY2d at 681).
          The facts of this case are different from Savage in
several respects.   These differences, however, support the
application of our rule in Savage.     Here, unlike in Savage,
defendant's statement was not the product of interrogation, but
was made spontaneously at the scene, prior to the issuance of
Miranda warnings.   In addition, the substance of defendant's


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spontaneous statement was not inculpatory, but a description of
the complainant's conduct and was made to inform the police when
the information was timely to their decision as to whether to
arrest defendant or complainant.   Even more significant,
defendant admitted in his direct testimony that he was not silent
and that he had given the police his version of complainant's
misconduct at the scene.   Consequently, the credibility of his
initial spontaneous statement was legitimately called into
question by his trial testimony.
          Here, defendant elected to provide some explanation of
what happened at the scene, and it was unnatural to have omitted
the significantly more favorable version of events to which he
testified at trial -- that complainant had assaulted him.
"[D]efendant's conspicuous omission of these exculpatory facts in
his voluntary statement to police tended to show that his trial
testimony was a recent fabrication" (Williams, 25 NY3d at 192).
          To the extent the People went beyond the proper scope
of the trial court's original Savage ruling by inquiring as to
matters that preceded the altercation and would not have been
unnatural omissions from the spontaneous statement (i.e.,
complainant chasing the girls from the store), any such argument
is unpreserved, as defense counsel did not object to any
testimony on that basis.   Notably, in this case, there is no
significant probability that the result would have been different
even if the court had denied the People's request to impeach


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defendant (see People v Crimmins, 36 NY2d 230, 242 [1975]).    The
evidence was overwhelming and the content of defendant's
spontaneous statement was already before the jury through the two
conflicting versions as provided by the responding officer's
testimony and defendant's direct testimony, thus allowing the
jurors to draw their own conclusion as to credibility from the
plainly inconsistent testimony.
          Defendant's remaining arguments are without merit.
          Accordingly, the order of the Appellate Division should
be affirmed.




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People v Lyxon Chery
No. 159




RIVERA, J.(concurring):
              For the reasons stated by the majority, I agree that
the facts of this case make it different from People v Savage (50
NY2d 673 [1980]) (maj op 6-7).       Unlike the majority, I find those
differences cannot be analytically overcome and believe that it
was error to allow the People to impeach the defendant's trial
testimony with his selective silence during cross-examination.
Omissions from a non-exculpatory, spontaneous, pre-Miranda
statement to police at the scene of the arrest do not rise to the
"limited and unusual circumstances" contemplated in People v
Williams (25 NY3d 185, 193 [2015]).          However, because the error
was harmless, and because the other claims are without merit, the
Appellate Division should be affirmed.




*   *     *     *   *   *   *   *    *      *   *   *   *   *   *   *     *
Order affirmed. Opinion by Chief Judge DiFiore. Judges Pigott,
Abdus-Salaam, Stein, Fahey and Garcia concur. Judge Rivera
concurs in result in a separate concurring opinion.

Decided November 1, 2016



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