PEOPLE v. BROWN (1999)

Defendant appeals from a judgment convicting him of assault in the first degree (Penal Law § 120.10[3] ) and criminal possession of a weapon in the third degree (Penal Law § 265.02[1] ).   Defendant contends that County Court erred in denying his motion to suppress oral statements taken in violation of his Miranda rights, and that the prosecutor engaged in misconduct in eliciting, and that defense counsel was ineffective in failing to object to, evidence of defendant's silence.

 The court erred in denying the motion to suppress.   A suspect's right to remain silent, once unequivocally and unqualifiedly invoked, must be “scrupulously honored” (Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 16 L.Ed.2d 694;  see, Michigan v. Mosley, 423 U.S. 96, 103-104, 96 S.Ct. 321, 46 L.Ed.2d 313;  People v. Ferro, 63 N.Y.2d 316, 322, 482 N.Y.S.2d 237, 472 N.E.2d 13, cert. denied 472 U.S. 1007, 105 S.Ct. 2700, 86 L.Ed.2d 717).   In that event, “interrogation must cease” (People v. Gary, 31 N.Y.2d 68, 70, 334 N.Y.S.2d 883, 286 N.E.2d 263), and the suspect “may not within a short period thereafter and without a fresh set of warnings be importuned to speak about the same suspected crime” (People v. Ferro, supra, at 322, 482 N.Y.S.2d 237, 472 N.E.2d 13).   A subsequent inquiry may be made into the subject only where a significant period of time has passed since the invocation of the right to remain silent and where the police have reiterated the requisite warnings (see, Michigan v. Mosley, supra, at 103-104, 96 S.Ct. 321).   Here, when asked about the Lawson incident, defendant said that he did not want to talk about it, thus unequivocally invoking his right to remain silent.   We need not decide whether a sufficient period of time elapsed before the officer resumed questioning defendant about that matter (see generally, People v. Suressi, 170 A.D.2d 1004, 1005, 566 N.Y.S.2d 158, lv. denied 77 N.Y.2d 967, 570 N.Y.S.2d 501, 573 N.E.2d 589).   The People failed to establish that the officer readministered Miranda warnings to defendant (see generally, People v. Nisbett, 225 A.D.2d 801, 802, 640 N.Y.S.2d 165, lv. denied 88 N.Y.2d 939, 647 N.Y.S.2d 173, 670 N.E.2d 457).   Under the circumstances, defendant's motion to suppress should have been granted.

 Nevertheless, the error is harmless, and the judgment need not be reversed (see, People v. Suressi, supra, at 1005-1006, 566 N.Y.S.2d 158).   Defendant's statement added nothing to the victim's testimony or the ballistics evidence establishing that defendant shot Lawson in the face at close range with a .380 handgun.   There is no “reasonable possibility that the error might have contributed to defendant's conviction” (People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787).

 Any error in eliciting testimony concerning defendant's silence (see generally, People v. De George, 73 N.Y.2d 614, 618-620, 543 N.Y.S.2d 11, 541 N.E.2d 11;  People v. Conyers, 52 N.Y.2d 454, 457, 438 N.Y.S.2d 741, 420 N.E.2d 933) is likewise harmless (see, People v. McLean, 243 A.D.2d 756, 662 N.Y.S.2d 629, lv. denied 91 N.Y.2d 928, 670 N.Y.S.2d 410, 693 N.E.2d 757;  People v. Sutherland, 219 A.D.2d 523, 525, 645 N.Y.S.2d 466, lv. denied 87 N.Y.2d 908, 641 N.Y.S.2d 238, 663 N.E.2d 1268, 88 N.Y.2d 886, 645 N.Y.S.2d 461, 668 N.E.2d 432).   Similarly, defense counsel's failure to object to such testimony does not, standing alone, constitute ineffective assistance (see, People v. Arnold, 188 A.D.2d 1020, 1021, 591 N.Y.S.2d 666, lv. denied 81 N.Y.2d 836, 595 N.Y.S.2d 735, 611 N.E.2d 774;  People v. Lester, 124 A.D.2d 1052, 508 N.Y.S.2d 741, lv. denied 69 N.Y.2d 830, 513 N.Y.S.2d 1037, 506 N.E.2d 548).   Counsel's representation of defendant, viewed in its entirety, was meaningful (see, People v. Satterfield, 66 N.Y.2d 796, 798-799, 497 N.Y.S.2d 903, 488 N.E.2d 834;  People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).

Judgment unanimously affirmed.

MEMORANDUM: