| People v Morehouse |
| 2022 NY Slip Op 01205 [202 AD3d 1370] |
| February 24, 2022 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Scott Morehouse, Appellant. |
Rural Law Center of New York, Castleton (Keith F. Schockmel of counsel), forappellant.
Jason M. Carusone, District Attorney, Lake George (Matthew D. Burin of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of Warren County (Hall Jr., J.),rendered August 23, 2017, upon a verdict convicting defendant of the crime of assault in thesecond degree.
While in jail awaiting the disposition of unrelated charges, defendant was involved in aphysical altercation with a fellow incarcerated individual (hereinafter the victim), which resultedin the victim sustaining a number of facial fractures and defendant being charged with assault inthe second degree. Defendant then successfully moved to suppress certain statements he made tocorrection officers outside the presence of counsel and proceeded to trial. Defendant elected totestify on his own behalf and did not deny his actions, instead claiming that he acted inself-defense and that he had told one correction officer as much immediately following theincident. The People then sought, among other relief, to offer certain evidence in rebuttal,including defendant's suppressed statements, to demonstrate that his claim of self-defense was arecent fabrication, and County Court granted that application in pertinent part. The juryultimately found defendant guilty as charged, and he was sentenced, as a second felony offender,to the maximum prison term of seven years, to be followed by five years of postreleasesupervision. Defendant appeals.
Defendant's claim of improper rebuttal evidence is unavailing. "Rebuttal evidence may beoffered to contradict the testimony of a witness or to disprove 'some affirmative fact which theanswering party has endeavored to prove' " (People v Shepherd, 83 AD3d 1298, 1301 [2011], lv denied17 NY3d 809 [2011], quoting People v Harris, 57 NY2d 335, 345 [1982], certdenied 460 US 1047 [1983]; seePeople v Nunez, 61 AD3d 409, 410 [2009], lv denied 12 NY3d 927 [2009]).Additionally, it is well established that voluntary "statement[s] obtained in violation of anyaspect of a defendant's Miranda rights, although not admissible as evidence-in-chief, maybe used to impeach a defendant who chooses to take the stand and whose testimony isinconsistent with his [or her] illegally obtained statement" (People v Maerling, 64 NY2d134, 140 [1984]; see People v Kulis, 18 NY2d 318, 322-323 [1966]; People v Martin, 8 AD3d 883, 886[2004], lv denied 3 NY3d 677 [2004]).[FN1]
As relevant here, defendant testified that he and the victim got into a heated conversationwhile in a common area of the jail, after which the victim walked away. The victim returnedshortly thereafter and, according to defendant, threatened to stab defendant in the neck with apen. When the victim subsequently moved closer to him, defendant, suspecting the victim washolding a pen in his concealed hand, assaulted him. Defendant went on to testify that he theninformed a correction officer that he had acted in self-defense. In contrast, defendant's suppressedstatements were, in sum and substance, that the victim had directed an antagonistic, sexuallyexplicit remark toward [*2]him, prompting defendant to cautionhim not to repeat the remark or else defendant would become physically violent with him. Whenthe remark was repeated, defendant assaulted the victim, and defendant later stated that, nexttime, the victim would not make such a remark. On cross-examination, defendant recalledconveying a version of that remark to the aforementioned correction officer, but he indicated thatthe altercation "[h]ad nothing to do with that." In rebuttal, that correction officer and one othercorrection officer also present at the scene testified consistently with the People's CPL 710.30notice, adding that defendant did not say anything about self-defense following the incident.
The suppressed statements are largely inconsistent with defendant's claim of self-defense, aclaim of which the People were unaware prior to trial. The rebuttal evidence was thereforeproperly received to both impeach defendant regarding what he said to correction officersfollowing the incident and to permit the People the opportunity to disprove defendant's newallegations of justification (see People vRogers, 81 AD3d 1185, 1186 [2011], lv denied 16 NY3d 899 [2011]; People v Johnson, 13 AD3d 811,813 [2004], lv denied 4 NY3d 799 [2005]; People v Crumbs, 295 AD2d 227, 227[2002], lv denied 99 NY2d 534 [2002]; People v Harrington, 262 AD2d 220, 220[1999], lv denied 94 NY2d 823 [1999]).[FN2]
Defendant lastly argues that his sentence is harsh and excessive in light of what wasindisputably a traumatic childhood and his resultant mental health issues. We have reviewed theconfidential psychiatric evaluations provided to us, which County Court had ordered in regard toprior unrelated charges, and we are sympathetic to the series of trying circumstances that nodoubt contributed to defendant's detention and the subject incident while he was detained. Still,County Court was keenly aware of those circumstances and defendant's mental health diagnoseswhen fashioning its sentence. The court was also able to review the presentence investigationreport prepared for the instant conviction, which reveals that defendant has a lengthy criminalhistory and a considerable number of prior assault charges and convictions. It must also berecognized that the victim sustained serious physical injuries as a result of defendant's assault. Inlight of the foregoing, we cannot say that County Court abused its discretion in imposing thelawful, maximum sentence,[FN3] and we decline to exercise our interest ofjustice jurisdiction to reduce it.
Lynch, J.P., Aarons and Reynolds Fitzgerald, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:Defendant does not contend thathis statements were involuntary.
Footnote 2:Defendant did not preserve hisrelated claim that evidence of what he did not say to correction officers violated his right toremain silent, and we therefore do not address it (see People v Tout-Puissant, 155 AD3d 654, 655 [2017], lvdenied 30 NY3d 1120 [2018]; People v Jones, 138 AD3d 541, 541 [2016], lv denied 27NY3d 1152 [2016]). We nevertheless note that, although evidence of a defendant's pretrialsilence, including selective silence, is generally inadmissible (see People v Chery, 28 NY3d 139, 144 [2016]), where, as here, "it[was] most unnatural to omit certain information from a statement, the fact of the omission isitself admissible for purposes of impeachment" (People v Savage, 50 NY2d 673, 679[1980], cert denied 449 US 1016 [1980]).
Footnote 3:At oral argument, the partiesinformed the Court that the People dismissed nine other pending charges against defendantbecause of the sentence that defendant would already be serving for the instant conviction.County Court was aware that those charges included two class D violent felonies stemming fromtwo separate incidents, exposing defendant to a period of incarceration well beyond seven years(see Penal Law §§ 70.02 [1] [c]; 70.06 [6] [c]; see also PenalLaw § 70.08).