PEOPLE v. FERS

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Daniel FERS, Defendant-Appellant.

Decided: September 28, 2006

MAZZARELLI, J.P., ANDRIAS, SULLIVAN, NARDELLI, McGUIRE, JJ. Rochman Platzer Fallick Sternheim Luca & Pearl, LLP, New York (Jillian S. Harrington of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Martin J. Foncello of counsel), for respondent.

Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered August 9, 2005, convicting defendant, after a jury trial, of grand larceny in the fourth degree (three counts) and criminal possession of stolen property in the fourth degree (three counts), and sentencing him to concurrent terms of 60 days and 5 years' probation, unanimously affirmed.   The matter is remitted to Supreme Court, New York County, for further proceedings pursuant to CPL 460.50(5).

Defendant's evidentiary claim is unpreserved and we decline to review it.   Were we to review it, we would find it to be without merit.   Defendant opened the door to evidence and summation comment concerning his pretrial silence.   Defendant testified on direct examination that he had an innocent explanation for his possession of the wallet he allegedly stole, but that the civilians who seized him prevented him from explaining, and that the police never asked him what happened.   Thus, defendant, by his own testimony, put his pretrial silence in issue.   In his responses to cross-examination by the People, defendant developed these matters in greater detail and further opened the door (see People v. Davis, 61 N.Y.2d 202, 473 N.Y.S.2d 146, 461 N.E.2d 283 [1984] ).   In any event, were we to find any error, we would find it to be harmless in light of the court's careful limiting instructions and the overwhelming evidence of defendant's guilt.