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This opinion is uncorrected and subject to revision before

publication in the New York Reports.

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No. 34 

The People &c.,

 Respondent,

 v.

Paul Williams,

 Appellant.

Piotr Banasiak, for appellant.

James P. Maxwell, for respondent.

FAHEY, J.:

This appeal concerns the People's references in their

case-in-chief to defendant's selective silence during custodial

interrogation, after defendant had waived his Miranda rights and

agreed to speak to the police. We hold, as a matter of state

evidentiary law, that evidence of a defendant's selective silence 

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generally may not be used by the People as part of their case-inchief, either to allow the jury to infer the defendant's

admission of guilt or to impeach the credibility of the

defendant's version of events when the defendant has not

testified. 

I.

On August 30, 2008, defendant, the victim's former

boyfriend, arrived at the victim's apartment unannounced.

According to the victim's trial testimony, defendant gained entry

to the apartment by means of a ruse and then raped her in the

bathroom of the apartment; she testified that the bathroom sink

crashed to the floor as she struggled with defendant. After

defendant left the apartment, the victim called the police, and

defendant was taken into custody. The detective who interviewed

defendant advised him of his Miranda rights. Defendant stated

that he understood those rights and that he was willing to speak

with the detective, but he refused to sign the Miranda form. 

Defendant was evasive during the ensuing interview. 

Defendant admitted that he knew the victim, but when the

detective asked him specific questions about the incident,

defendant either did not respond or repeated the detective's

questions back to him. When asked whether he had sex with the

victim, defendant did not answer. While the police were

transporting defendant to his arraignment, defendant admitted

that he had been in the victim's kitchen earlier that day. 

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Saliva taken from the victim's shoulder and left breast

matched defendant's DNA. In addition, the victim had a bruise

and scratches on her body, and the sink in her bathroom was

broken off from the wall. 

Defendant was charged with rape in the first degree,

burglary in the second degree, sexual abuse in the first degree,

rape in the third degree, and criminal impersonation in the first

degree. After a Huntley hearing, County Court denied defendant's

motion to suppress his statements to the police. 

At trial, the prosecutor told the jurors during opening

statements that they would hear defendant's grand jury testimony,

during which defendant asserted that he and the victim had

consensual sex in the bathroom of her apartment on the day in

question. The prosecutor further stated that the jury would be

able to compare defendant's grand jury testimony with defendant's

statements to the detective during the custodial interview, which

the prosecutor characterized as "not outright denying what ha[d]

happened, but not admitting to it either." 

During her opening statement, defense counsel told the

jury that defendant had a right to refuse to speak to the police

and that his silence should not be used against him. Defense

counsel later objected to the part of the prosecutor's opening

referring to defendant's postarrest silence. County Court

refused to issue a curative instruction. The court reasoned that

defense counsel had adequately responded to the prosecutor's

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opening statement in her own opening statement.

The court permitted the detective who had interviewed

defendant to testify, over defense counsel's objection, as

follows: 

"[THE PROSECUTOR]: Did you ever specifically

ask [defendant] if he had sex with [the

victim]?

[THE DETECTIVE]: Yes. 

Q. And what was his response? 

A. He didn't answer. 

Q. He didn't answer? 

A. No. 

Q. Did he deny it? 

. . . 

A. No." 

Later during the People's direct case, the court

admitted defendant's grand jury testimony in evidence. Defendant

did not testify at trial and did not present any evidence. 

During closing arguments, the People again noted

defendant's failure to respond when the detective asked defendant

whether he had sex with the victim. Defense counsel made no

specific objection to this portion of the prosecutor's closing

argument. The People argued that in light of defendant's failure

to respond to that question, defendant's grand jury testimony

that the sex was consensual should be deemed to be incredible and

a fabrication concocted by defendant after he learned that the

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saliva on the victim's body matched his DNA. The jury

subsequently convicted defendant of sexual abuse in the first

degree, rape in the third degree, and criminal impersonation in

the first degree. 

The Appellate Division modified County Court's judgment

in respects that are not pertinent here and, as modified,

affirmed (107 AD3d 1391 [4th Dept 2013]). The court determined

that defendant's contention regarding the People's use of his

selective silence was preserved with respect to the prosecutor's

opening statement and the detective's testimony (see id. at

1393). The court further determined that defendant's contention

with respect to the prosecutor's closing argument was

unpreserved, but it addressed that part of defendant's contention

as a matter of discretion in the interest of justice (see id.). 

On the merits, the Appellate Division held that the comments by

the prosecutor concerning defendant's postarrest silence during

opening and closing statements were improper and that County

Court erred in admitting into evidence that portion of the

detective's testimony concerning defendant's selective silence

(see id. at 1394). The Appellate Division further concluded,

however, that "any such errors were harmless beyond a reasonable

doubt" (id. [internal quotation marks omitted]).

A Judge of this Court granted defendant leave to appeal

(22 NY3d 1160 [2014]). We now reverse. 

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II.

As a preliminary matter, we agree with the Appellate

Division that defendant's contention regarding the People's use

of his selective silence was preserved as to the prosecutor's

opening statement and the detective's testimony, but not as to

the prosecutor's closing statement. Consequently, we do not

consider defendant's challenge to the prosecutor's closing

argument. 

It is a well-established principle of state evidentiary

law that evidence of a defendant's pretrial silence is generally

inadmissible (see People v Rutigliano, 261 NY 103, 106-107

[1933]). In People v Conyers (52 NY2d 454 [1981]), we extended

that principle and held that, absent circumstances not present in

that case, "our State rules of evidence preclude the use of a

defendant's pretrial silence to impeach his trial testimony" (id.

at 457). This was so because a defendant's silence is generally

ambiguous and "of extremely limited probative worth" (id. at

458). We noted that there are many reasons why an individual may

choose not to speak to police that are wholly unrelated to the

veracity of his or her trial testimony, but that there is a

substantial risk that jurors might "construe such silence as an

admission and . . . draw an unwarranted inference of guilt" (id.

at 458-459). 

We subsequently held in People v De George (73 NY2d 614

[1989]) that our decision in Conyers applied to a defendant's

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"pretrial" silence and was not limited to "postarrest" silence

(id. at 619-620). We reiterated that, as a matter of state

evidentiary law, the People generally may not use evidence of

defendant's pretrial silence either on their direct case or to

impeach the defendant's trial testimony (see id. at 617-618). 

There may be a rare set of circumstances in which it is

permissible for the People to refer to a defendant's silence

during their case-in-chief. However, the general evidentiary

principles established in Conyers and De George remain in place

today: the People generally may not refer to a defendant's

silence during their direct case, and, absent unusual

circumstances, the People may not use a defendant's silence to

impeach his or her trial testimony. 

We have twice held that such unusual circumstances

existed. In People v Rothschild (35 NY2d 355 [1974]), the

defendant, a police officer, was accused of larceny by extortion

for his conduct in threatening members of the victim's family in

order to obtain money from the victim. At trial, the defendant

testified that he had agreed to accept money from the victim in

order to arrest the victim for bribery. On cross-examination,

the prosecutor elicited from defendant that he had not told any

of his superior officers after his arrest about the victim's

supposed bribe offer. We held that such inquiry on crossexamination was permissible because the defendant had a duty to

inform his superior officers of any bribe and, in light of that

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duty, his failure to speak was "patently inconsistent with the

defense asserted" (id. at 360). 

In People v Savage (50 NY2d 673 [1980], cert denied 449

US 1016 [1980]), the defendant was arrested on charges of

intentionally shooting the victim during an altercation. The

defendant confessed to the arresting officer that he had shot the

victim. During trial, the defendant testified that the victim

had attempted to rob him and that the discharge of the gun was

inadvertent. On cross-examination, the prosecutor asked the

defendant whether he had told the arresting officer that the

victim had attempted to rob him. We held, as a matter of state

evidentiary law, that such questioning was permissible

impeachment because defendant's conspicuous omission of these

exculpatory facts in his voluntary statement to police tended to

show that his trial testimony was a recent fabrication. We

recognized in Savage, however, that "reference to the omission,

because of its negative nature, could not serve substantively as

evidence in chief to prove the commission of the crime" (id. at

679-680). 

The People contend that the circumstances present in

this case are analogous to those present in Savage and

Rothschild, and that the general principles articulated in

Conyers and De George do not control. We disagree. 

This case is fundamentally different from Savage and

Rothschild. In those cases, the People used conspicuous

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omissions from the defendants' statements to police during crossexamination of the defendants, in order to impeach the

credibility of the exculpatory testimony provided by the

defendants at trial. Here, by contrast, the People introduced,

as part of their case-in-chief, evidence regarding defendant's

failure to tell the detective during custodial interrogation that

he and the victim had consensual sex. Later during their casein-chief, the People also introduced defendant's grand jury

testimony, during which defendant insisted that he and the victim

had consensual sex. The People's use of defendant's silence

during their case-in-chief therefore violated our common-law

rules of evidence (see De George, 73 NY2d at 618). Inasmuch as

defendant did not testify at trial, there is no need for us to

consider whether unusual circumstances such as those present in

Savage and Rothschild would have allowed the People to use

defendant's selective silence to impeach him if he had testified

(see Conyers, 52 NY2d at 459). 

The People claim that they were essentially impeaching

the defendant's grand jury testimony because evidence of

defendant's omission was necessary to demonstrate that the

version of events he told the grand jury was false. The People

also contend that the admission of defendant's grand jury

testimony was helpful to defendant, because had the People not

presented that testimony to the jury, defendant "would have had

to testify in order to put his claim of consensual sex before the

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jury." These arguments are without merit. The People may not

introduce evidence that they deem favorable to defendant on their

direct case and impeach that evidence, also on their direct case,

with evidence of defendant's silence. 

Furthermore, although evidence of defendant's silence

was inadmissible during any part of the People's direct case, the

People's claim that their purpose was to impeach defendant's

grand jury testimony is weakened by the fact that they introduced

evidence of defendant's silence before they introduced his grand

jury testimony. Thus, at the time that the detective testified

that defendant neither admitted nor denied having sex with the

victim, there was no contrary version of events to impeach. The

risk that the jurors drew an improper inference of guilt was

therefore even greater. 

There is no need to depart from the principles

articulated in De George and Conyers merely because defendant's

silence here was only partial. If silence could constitute an

answer, then the People could meet their burden simply by asking

a question. Moreover, evidence of a defendant's selective

silence "is of extremely limited probative worth" (Conyers, 52

NY2d at 458). A defendant who agrees to speak to the police but

refuses to answer certain questions may have the same legitimate

or innocent reasons for refusing to answer as a defendant who

refuses to speak to the police at all (see id.). Furthermore,

the potential risk of prejudice from evidence of a defendant's

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selective silence is even greater than the risk to a defendant

who chooses to remain totally silent. Jurors are more likely to

construe a defendant's refusal to answer certain questions as an

admission of guilt if the defendant has otherwise willingly

answered other police inquiries. The ambiguous nature and

limited probative worth of a defendant's selective silence is

outweighed by the substantial risk of prejudice to the defendant

from admission of such evidence (see id. at 459). Evidence of a

defendant's selective silence therefore generally may not be used

by the People during their case-in-chief and may be used only as

"a device for impeachment" of a defendant's trial testimony in

limited and unusual circumstances (Savage, 50 NY2d at 680; see

Conyers, 52 NY2d at 459). 

The People's use of defendant's selective silence in

this case was improper for another reason. In her opening

statement, the prosecutor told the jury that defendant did not

admit or deny the accusations when he spoke to the detective. 

Furthermore, during direct examination of the detective, the

prosecutor elicited testimony establishing not only that

defendant did not answer when asked whether he had sex with the

victim, but also that he did not deny it either. In addition to

using defendant's selective silence as a purported impeachment

device during their direct case, the People also invited the jury

to infer an admission of guilt from defendant's failure to deny

the accusations. The risk that the jury made such an

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impermissible inference is substantial where, as here, defendant

selectively answered some police questions but not others, and

the court refused to provide any curative instruction. The

prosecutor's comments regarding defendant's selective silence

during opening statements were improper, and the court erred in

allowing testimony concerning defendant's selective silence at

trial, inasmuch as the comments and testimony allowed the jury to

"draw an unwarranted inference of guilt" (Conyers, 52 NY2d at

459). 

In light of our holding that the People's use of

defendant's selective silence violated our common-law evidentiary

principles, we need not address defendant's contention that the

People's use of his selective silence also violated the State and

Federal Constitutions (see De George, 73 NY2d at 618; Conyers, 52

NY2d at 457).

III. 

The People contend, in the alternative, that any error

was harmless. Under the standard applicable to nonconstitutional

errors, an error is harmless if the proof of defendant's guilt is

overwhelming and there is no significant probability that the

jury would have acquitted defendant had the error not occurred

(see People v Crimmins, 36 NY2d 230, 242 [1975]). 

We conclude that the errors are not harmless as a

matter of law. Even assuming that the evidence of defendant's

guilt is overwhelming, there is a significant probability that

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the jurors would have acquitted defendant if the errors did not

occur. For the reasons discussed above, evidence of defendant's

selective silence is highly prejudicial, and there is a

significant risk that the jurors deemed defendant's failure to

answer the detective's question as to whether he had sex with the

victim to be an admission of guilt. Moreover, the court refused

to provide a curative instruction to the jury after the

prosecutor referred to defendant's selective silence during her

opening statement. 

We do not place as much significance as our dissenting

colleagues on defendant's response to the detective during

custodial interrogation (see dissenting op. at 2-3). Although it

is true that the detective had not said anything to defendant

"about breaking down a door," the detective told defendant that

"the reason why you're here today is that it's being alleged that

you forced your way into [the victim's] apartment and had sex

with her." Defendant responded, "Honestly, do you think I just

broke down the door?" Inasmuch as the detective had just told

defendant that he was accused of forcing his way into the

victim's apartment, defendant's response was consistent with a

denial of that accusation and with his later admission that he

was in the victim's apartment that day. Furthermore, defendant's

response was in agreement with the version of events that he

later told the grand jury: that he and the victim had consensual

sex after she ultimately allowed him into her apartment. We

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therefore respectfully disagree with our dissenting colleagues

that defendant's response to the detective "revealed his

knowledge of the breaking and entering aspect of the crime at a

time when such knowledge could only have flowed from his

participation in the offense" and that his response was evidence

of his consciousness of guilt (dissenting op. at 2-3). Rather,

defendant's response to the detective was just as compatible with

a denial of the accusation that he had forced his way into the

victim's apartment. We therefore hold that the error was not

harmless and that reversal is required. 

In light of our decision that there must be a new

trial, we have no need to address defendant's remaining

contentions. 

Accordingly, the order of the Appellate Division should

be reversed and a new trial ordered. 

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People v Paul Williams

No. 34 

ABDUS-SALAAM, J.(dissenting):

I agree with the majority that the trial court erred in

permitting the People to adduce evidence of, and comment upon,

defendant's partial post-arrest silence on their case-in-chief,

for state evidentiary law barred the admission of that evidence

(see majority op. at 1-2, 6-12; see also People v De George, 73

NY2d 614, 617-620 [1989]; People v Conyers, 52 NY2d 454, 457-459

[1981]). As the majority's excellent and learned discussion of

our case law in this area reveals (see majority op. at 6-9), only

the most unusual circumstances will justify the admission of a

defendant's post-arrest silence on the People's direct case, and

no such circumstances exist here. However, unlike the majority

(see majority op. at 12-14), I find that the error was harmless

on account of the overwhelming quality of the proof against

defendant and the limited prejudice occasioned by the evidence of

his silence. While I acknowledge that reasonable minds may

differ on the harmless error issue presented by this case, my

disagreement with the majority on this subject nonetheless

prompts me to respectfully dissent.

As the majority rightly points out (see majority op. at

6, 10-12), evidence of post-arrest silence has limited probative

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value and risks improperly prejudicing a defendant by causing the

jurors to speculate that the defendant remained silent in an

effort to hide his or her guilt (see Conyers, 52 NY2d at 459). 

But, here, defendant's silence in the face of police questioning,

which should have been excluded from evidence, was scarcely any

more harmful than the properly admitted evidence that he had

revealed his knowledge of the breaking and entering aspect of the

crime at a time when such knowledge could only have flowed from

his participation in the offense. 

In that regard, defendant's girlfriend told the police

and, later, the jury, that on the day of the crime, defendant had

pretended to be a police officer in order to convince her to open

the door to her apartment. When she opened the door and saw

defendant, she tried to close it again, but he pushed it open to

force his way into the apartment, at which point she succumbed to

a combination of his physical effort and oral entreaties. During

their interview with defendant, the police did not disclose this

information to him. Nonetheless, defendant told the police,

"Honestly, do you think that I just broke the door down?" At the

Huntley hearing, the court ruled this statement admissible, and

therefore the jury properly received it regardless of whether

they should have learned of defendant's post-arrest silence. 

Having heard that statement, the jury surely would have inferred

that defendant was conscious of his own guilt insofar as he knew

that he had used a ruse and then physical force to effectively

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break into the apartment to commit the crime. Consequently, the

forbidden evidence of defendant's post-arrest silence did not

significantly impact the outcome of the trial because, absent

that evidence, the jury still would have drawn an adverse

inference from defendant's interactions with the police based on

the admissible evidence (see People v Crimmins, 36 NY2d 230, 242

[1975]). 

Furthermore, the evidence of defendant's guilt was

overwhelming (see id.; see also People v Boop, 118 AD3d 1273,

1273 [4th Dept 2014], lv denied 24 NY3d 1082 [2014]; see

generally Conyers, 49 NY2d at 183). After all, even without the

contested proof of defendant's silence, the jury still would have

received the following fully admissible testimonial evidence: (1)

defendant's girlfriend's consistent testimony, which in essential

substance matched her statement to the police, that defendant had

used a ruse to convince her to open the door to the apartment,

that he had pushed the door open when she tried to close it on

him, that he had brutally raped her, that she had called a friend

to come to her aid and that she had reported the rape to the

friend, who called the police; (2) the testimony of the friend,

Nicole Veaudry, that the girlfriend had summoned her to the

apartment immediately after the incident, had reported that

something had occurred, had been shaking and crying, and had

prompted Veaudry to call the police; (3) the testimony of police

officers that the girlfriend was still upset when they responded

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to the 911 call and that the bathroom sink in her apartment had

been dislodged; (4) the testimony that, in response to police

questioning, defendant said, "Honestly, do you think that I just

broke the door down?"; and (5) defendant's grand jury testimony,

in which he delivered an account of events that seemed to be

tailored to match the medical and other evidence, which he

admitted having reviewed prior to his testimony. 

Additionally, without knowledge of defendant's postarrest silence, the jurors still would have learned of the

following physical evidence and explanatory testimony: (1) DNA

evidence showing that defendant left his saliva on several of his

girlfriend's body parts during the incident; (2) physical

evidence of numerous cuts and a hand-shaped mark on the

girlfriend's body; (3) physical evidence of a laceration between

the girlfriend's vagina and anus; and (4) the Sexual Assault

Nurse Examiner's testimony that this injury had been caused by

blunt force trauma, that it was consistent with forcible sexual

assault and that, while it could have theoretically occurred

during consensual sex, the nature and location of the injury

rendered a consent scenario unlikely. Given that the physical

evidence corroborated defendant's girlfriend's account of a

forcible rape and the testimonial proof thoroughly reinforced her

credibility while undermining defendant's, the evidence

overwhelmingly established defendant's guilt of the crimes of

which he was convicted. 

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In sum, while I certainly do not condone the People's

use of defendant's post-arrest silence against him, I conclude

that the error was harmless, for the introduction of that

evidence was not the likely source of his conviction. Rather, it

was the highly persuasive and admissible proof of defendant's

guilt that ultimately led to the verdict here. Furthermore, I

find defendant's remaining contentions to be either unpreserved

or lacking in merit. Accordingly, I respectfully dissent and

vote to affirm the Appellate Division's order.

* * * * * * * * * * * * * * * * *

Order reversed and a new trial ordered. Opinion by Judge Fahey. 

Chief Judge Lippman and Judges Read, Rivera and Stein concur. 

Judge Abdus-Salaam dissents in an opinion in which Judge Pigott

concurs.

Decided April 7, 2015

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