SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

436 

KA 06-02623 

PRESENT: SMITH, J.P., LINDLEY, SCONIERS, AND MARTOCHE, JJ.

 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

DAVID M. ZACHER, DEFENDANT-APPELLANT. 

 

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. 

 

Appeal from a judgment of the Supreme Court, Monroe County

(Joseph D. Valentino, J.), rendered May 26, 2006. The judgment

convicted defendant, upon a jury verdict, of murder in the first

degree (two counts) and assault in the first degree. 

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed. 

Memorandum: 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 AD2d 927, 928, lv denied 89 NY2d 944; see People v Caruso,

34 AD3d 860, 862, lv denied 8 NY3d 879). 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 NY2d 838, 839). 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 AD3d 1036, 1036, lv denied 7 NY3d 758,

814; see People v Twillie, 28 AD3d 1236, 1237, lv denied 7 NY3d 795),

which is not the case here. 
-2- 436 

KA 06-02623 

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 NY2d 584, 588). 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 AD2d 963, 964, lv denied 85 NY2d

980). 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 AD2d 756, 756-757, lv denied 91 NY2d 928; People v Sutherland, 219

AD2d 523, 525, lv denied 87 NY2d 908, 88 NY2d 886; see generally

People v Crimmins, 36 NY2d 230, 237). 

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 NY2d 289,

293), “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 NY2d

1014, 1016). 

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 NY3d 510, 515 n 2;

People v Francabandera, 33 NY2d 429, 436 n 4; Wilson v United States,

391 F2d 460, 463-464). We have considered defendant’s remaining

contentions and conclude that they are without merit. 

Entered: July 6, 2012 Frances E. Cafarell

Clerk of the Court