

People v Brown (2015 NY Slip Op 03469)





People v Brown


2015 NY Slip Op 03469


Decided on April 28, 2015


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on April 28, 2015

Tom, J.P., Sweeny, Manzanet-Daniels, Clark, Kapnick, JJ.


14949 5448/10

[*1] The People of the State of New York Respondent,
vRobert Brown, Defendant-Appellant.


Seymour W. James, Jr., The Legal Aid Society, New York (Frances A. Gallagher of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Jamie Hickey-Mendoza of counsel), for respondent.

Judgment, Supreme Court, New York County (Michael J. Obus, J.), rendered March 28, 2012, convicting defendant, after a nonjury trial, of criminal possession of stolen property in the fourth degree and unauthorized use of a vehicle in the second degree and sentencing him, as a second felony offender, to concurrent terms of two to four years, unanimously affirmed.
Defendant did not preserve his claim that the prosecutor improperly impeached him by way of his alleged exercise of his right to remain silent, and then improperly commented on such silence during summation, and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits. After receiving Miranda  warnings, and agreeing to provide a statement to the police, defendant made statements that omitted significant exculpatory matter that he included in his trial testimony. Under the circumstances, this was an unnatural omission, and a permissible basis for impeachment (see People v Savage , 50 NY2d 673 [1980], cert denied  449 US 1016 [1980]; People v Hightower , 237 AD2d 166 [1st Dept 1997], lv denied  89 NY2d 1094 [1997]; People v Foy , 220 AD2d 220 [1st Dept 1995], lv denied  87 NY2d 901 [1995]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: APRIL 28, 2015
CLERK


