| People v Theodore |
| 2014 NY Slip Op 00246 [113 AD3d 703] |
| January 15, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Reginald Theodore, Appellant. |
—[*1] Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove,Solomon Neubort, and Daniel Berman of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (DelGiudice, J.), rendered April 24, 2012, convicting him of manslaughter in the first degree,upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law, and the matter is remitted to theSupreme Court, Kings County, for a new trial before a different Justice.
The defendant contends that the jury verdict was against the weight of the evidencebecause the People failed to disprove his justification defense beyond a reasonable doubt.In fulfilling our responsibility to conduct an independent review of the weight of theevidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348-349 [2007]), wenevertheless accord great deference to the jury's opportunity to view the witnesses, hearthe testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410[2004], cert denied 542 US 946 [2004]; People v Bleakley, 69 NY2d490, 495 [1987]). Upon reviewing the record, we are satisfied that the rejection of thejustification defense and the verdict of guilt were not against the weight of the evidence(see People v Romero, 7NY3d 633 [2006]).
Contrary to the People's contention, the Supreme Court erred when it permitted theprosecutor to question the defendant about his post-arrest silence. Generally, adefendant's post-arrest silence cannot be used for impeachment purposes (see Peoplev De George, 73 NY2d 614, 618 [1989]; People v Conyers, 52 NY2d 454,457 [1981]; People vTucker, 87 AD3d 1077, 1078 [2011]; People v Mejia, 256 AD2d 422,422 [1998]). Further, " 'an individual's pretrial failure to speak when confronted by lawenforcement officials is of extremely limited probative worth' while 'the risk of prejudiceis substantial' " (People v Tucker, 87 AD3d at 1078, quoting People vConyers, 52 NY2d at 458, 459 [1981]).
Here, over defense counsel's objection, the prosecutor was permitted to impeach thedefendant's testimony with his failure to offer an exculpatory version of the events to thepolice. Although the defendant initially responded to certain questions asked by thepolice, he then invoked his right to remain silent and offered no information "narrat[ing]the essential facts of his involvement in the crime" (People v Savage, 50 NY2d673, 676 [1980], cert denied 449 US 1016 [1980]). Accordingly, the SupremeCourt erred in allowing the prosecutor to pursue this line of inquiry (see [*2]People v McArthur, 101 AD3d 752, 753 [2012];People v Tucker, 87 AD3d at 1079). Further, since the evidence in this case wasnot overwhelming, the error was not harmless (see People v Crimmins, 36 NY2d230, 241-242 [1975]).
In light of our determination, we need not reach the defendant's remainingcontentions.
We note that because of intemperate remarks made by the Supreme Court Justice atsentencing, which suggested that the Justice improperly sentenced the defendant basedon a crime for which he was acquitted (see People v Francis, 100 AD3d 1017 [2012]; People v Matyjewicz, 80AD3d 779 [2011]), and the Justice's refusal to consider a plea agreement reachedduring the course of the trial based on strict adherence to the Justice's individual policy,which was unrelated to the circumstances of this defendant and the proposed pleaagreement at issue (see People v Compton, 157 AD2d 903 [1990]), we remit thematter to the Supreme Court, Kings County, for a new trial before a different Justice.Dickerson, J.P., Hall, Cohen and Miller, JJ., concur.