| People v Zacher |
| 2012 NY Slip Op 05452 [97 AD3d 1101] |
| July 6, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v DavidM. Zacher, Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Stephen X. O'Brien of counsel), forrespondent.
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 thefirst 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, oftwo counts of murder in the first degree (Penal Law § 125.27 [1] [a] [viii]; [b]) and onecount of assault in the first degree (§ 120.10 [1]), arising from an incident in which hestabbed his wife and two daughters. Defendant contends that Supreme Court erred in refusing tosuppress certain statements that he made in response to questioning by a police officer while hewas in custody and after he had been given Miranda warnings because that officercontinued questioning defendant after he invoked his right to remain silent. We reject thatcontention. "It is well settled . . . that, in order to terminate questioning, theassertion by a defendant of his right to remain silent must be unequivocal and unqualified"(People v Morton, 231 AD2d 927, 928 [1996], lv denied 89 NY2d 944 [1997];see People v Caruso, 34 AD3d860, 862 [2006], lv denied 8 NY3d 879 [2007]). Whether that request was"unequivocal is a mixed question of law and fact that must be determined with reference to thecircumstances surrounding the request[,] including the defendant's demeanor, manner ofexpression and the particular words found to have been used by the defendant" (People vGlover, 87 NY2d 838, 839 [1995]). The court's determination that defendant did notunequivocally invoke his right to remain silent is "granted deference and will not be disturbedunless unsupported by the record" (People v Kuklinski, 24 AD3d 1036, 1036 [2005], lv denied7 NY3d 758 [2006]; see People vTwillie, 28 AD3d 1236, 1237 [2006], lv denied 7 NY3d 795 [2006]), which isnot the case here.
Defendant further contends that the testimony of another police officer that defendant did notspeak after the police arrived at the scene of the stabbings, placed him in handcuffs and put himin a police vehicle was improperly offered as evidence of his consciousness of guilt. We rejectthat contention inasmuch as such testimony was part of the officer's observations at the crimescene and was also offered as evidence of defendant's demeanor and mental state when the policeencountered him (cf. People v Von Werne, 41 NY2d 584, 588 [1977]). We agree withdefendant, [*2]however, that the prosecutor's cross-examinationof him regarding his silence at the crime scene and the prosecutor's later references to that silenceduring summation improperly characterized defendant's silence as evidence of his consciousnessof guilt (see People v Shelton, 209 AD2d 963, 964 [1994], lv denied 85 NY2d980 [1995]). Nevertheless, we conclude that such misconduct is harmless. In light of theoverwhelming proof of defendant's guilt, which included inculpatory statements defendant madeon the telephone with the 911 operator and in response to custodial interrogation followingMiranda warnings, we conclude that there is no reasonable possibility that themisconduct contributed to defendant's conviction (see People v McLean, 243 AD2d 756,756-757 [1997], lv denied 91 NY2d 928 [1998]; People v Sutherland, 219 AD2d523, 525 [1995], lv denied 87 NY2d 908 [1995], 88 NY2d 886 [1995]; see generallyPeople v Crimmins, 36 NY2d 230, 237 [1975]).
We reject defendant's contention that the court erred in refusing to suppress the statementsthat he made in response to questions asked during the intake process at the police station prior toreceiving 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 [1995]), "questions asked of thedefendant 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 elicitevidence of a crime" (People v Johnson, 59 NY2d 1014, 1016 [1983]).
Defendant further contends that he was denied a fair trial because he was unable to assist inhis defense in an adequate manner as a result of dissociative amnesia with respect to the eventssurrounding the stabbings. We reject that contention. The court appropriately compensated fordefendant's amnesia by, inter alia, granting expanded pretrial disclosure, and the court conductedthe requisite post-trial inquiry to assess whether defendant's amnesia impaired his defense. Afterconducting that post-trial assessment, the court properly concluded that defendant was competentto stand trial and that he had received a fair trial and effective assistance of counsel (see generally People v Phillips, 16NY3d 510, 515 n 2 [2011]; People v Francabandera, 33 NY2d 429, 436 n 4 [1974];Wilson v United States, 391 F2d 460, 463-464 [1968]). We have considered defendant'sremaining contentions and conclude that they are without merit. Present—Smith, J.P.,Lindley, Sconiers and Martoche, JJ.