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 crossexamination 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 wellestablished 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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