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The PEOPLE of the State of New York, Respondent, v. David M. ZACHER, Defendant–Appellant.

Decided: July 06, 2012

PRESENT: SMITH, J.P., LINDLEY, SCONIERS, AND MARTOCHE, JJ. Timothy P. Donaher, Public Defender, Rochester (Drew R. Dubrin of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Stephen X. O'Brien of Counsel), for Respondent.

Defendant appeals from a judgment convicting him, upon a jury verdict, of two counts of murder in the first degree (Penal Law § 125.27[1][a] [viii]; [b] ) and one count of assault in the first degree (§ 120.10[1] ), arising from an incident in which he stabbed his wife and two daughters. Defendant contends that Supreme Court erred in refusing to suppress certain statements that he made in response to questioning by a police officer while he was in custody and after he had been given Miranda warnings because that officer continued questioning defendant after he invoked his right to remain silent. We reject that contention. “It is well settled ․ that, in order to terminate questioning, the assertion by a defendant of his right to remain silent must be unequivocal and unqualified” (People v. Morton, 231 A.D.2d 927, 928, 647 N.Y.S.2d 897, lv denied 89 N.Y.2d 944, 655 N.Y.S.2d 895, 678 N.E.2d 508; see People v. Caruso, 34 A.D.3d 860, 862, 822 N.Y.S.2d 825, lv denied 8 N.Y.3d 879, 832 N.Y.S.2d 491, 864 N.E.2d 621). Whether that request was “unequivocal is a mixed question of law and fact that must be determined with reference to the circumstances surrounding the request [,] including the defendant's demeanor, manner of expression and the particular words found to have been used by the defendant” (People v. Glover, 87 N.Y.2d 838, 839, 637 N.Y.S.2d 683, 661 N.E.2d 155). The court's determination that defendant did not unequivocally invoke his right to remain silent is “granted deference and will not be disturbed unless unsupported by the record” (People v. Kuklinski, 24 A.D.3d 1036, 1036, 805 N.Y.S.2d 729, lv denied 7 N.Y.3d 758, 814, 819 N.Y.S.2d 883, 853 N.E.2d 254; see People v. Twillie, 28 A.D.3d 1236, 1237, 813 N.Y.S.2d 626, lv denied 7 N.Y.3d 795, 821 N.Y.S.2d 825, 854 N.E.2d 1290), which is not the case here.

Defendant further contends that the testimony of another police officer that defendant did not speak after the police arrived at the scene of the stabbings, placed him in handcuffs and put him in a police vehicle was improperly offered as evidence of his consciousness of guilt. We reject that contention inasmuch as such testimony was part of the officer's observations at the crime scene and was also offered as evidence of defendant's demeanor and mental state when the police encountered him (cf. People v. Von Werne, 41 N.Y.2d 584, 588, 394 N.Y.S.2d 183, 362 N.E.2d 982). We agree with defendant, however, that the prosecutor's cross-examination of him regarding his silence at the crime scene and the prosecutor's later references to that silence during summation improperly characterized defendant's silence as evidence of his consciousness of guilt (see People v. Shelton, 209 A.D.2d 963, 964, 619 N.Y.S.2d 436, lv denied 85 N.Y.2d 980, 629 N.Y.S.2d 740, 653 N.E.2d 636). Nevertheless, we conclude that such misconduct is harmless. In light of the overwhelming proof of defendant's guilt, which included inculpatory statements defendant made on the telephone with the 911 operator and in response to custodial interrogation following Miranda warnings, we conclude that there is no reasonable possibility that the misconduct contributed to defendant's conviction (see People v. McLean, 243 A.D.2d 756, 756–757, 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, 88 N.Y.2d 886; see generally People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787).

We reject defendant's contention that the court erred in refusing to suppress the statements that he made in response to questions asked during the intake process at the police station prior to receiving his Miranda warnings. While some of the questions that defendant was asked, such as whether anyone was at his home that evening, were not routine booking questions (see generally People v. Rodney, 85 N.Y.2d 289, 293, 624 N.Y.S.2d 95, 648 N.E.2d 471), “questions asked of the defendant at the time of his [or her] arrest, although prior to the requisite warnings, [are] nevertheless permissible [when] they [are] asked to clarify a volatile situation rather than to elicit evidence of a crime” (People v. Johnson, 59 N.Y.2d 1014, 1016, 466 N.Y.S.2d 957, 453 N.E.2d 1246).

Defendant further contends that he was denied a fair trial because he was unable to assist in his defense in an adequate manner as a result of dissociative amnesia with respect to the events surrounding the stabbings. We reject that contention. The court appropriately compensated for defendant's amnesia by, inter alia, granting expanded pretrial disclosure, and the court conducted the requisite post-trial inquiry to assess whether defendant's amnesia impaired his defense. After conducting that post-trial assessment, the court properly concluded that defendant was competent to stand trial and that he had received a fair trial and effective assistance of counsel (see generally People v. Phillips, 16 N.Y.3d 510, 515, 924 N.Y.S.2d 4, 948 N.E.2d 428 n .2; People v. Francabandera, 33 N.Y.2d 429, 436 n. 4, 354 N.Y.S.2d 609, 310 N.E.2d 292; Wilson v. United States, 391 F.2d 460, 463–464). We have considered defendant's remaining contentions and conclude that they are without merit.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.