Opinion
May 30, 1997
Present — Denman, P.J., Pine, Doerr, Balio and Boehm, JJ.
Judgment unanimously affirmed. Memorandum: Defendant was convicted of the murders of Willie Banks and Jason Witrsan in front of an apartment building. At trial, defendant raised the defense of self-defense. On direct examination, he testified that he felt he was in danger because someone had been killed in the same apartment from which he sold drugs, and there was a bullet hole in the door of the apartment. On cross-examination, the prosecutor attempted to impeach defendant by asking him whether he had so informed the police in his statement to them. Defendant contends that the prosecutor improperly questioned him concerning postarrest silence. We disagree. "When a defendant voluntarily speaks to the police, neither due process nor the privilege against self-incrimination prohibits cross-examination of the defendant about his failure to inform the police at that time of exculpatory circumstances to which he later testifies at trial" (People v. Spinelli, 214 A.D.2d 135, 140, lv dismissed 87 N.Y.2d 1025; see, People v. Savage, 50 N.Y.2d 673, 680, cert denied 449 U.S. 1016). In any event, the proof of defendant's guilt was overwhelming, and there is no reasonable possibility that the error might have contributed to defendant's conviction. Thus, any error is harmless beyond a reasonable doubt (see, People v. Crimmins, 36 N.Y.2d 230, 237). (Appeal from Judgment of Monroe County Court, Bristol, J. — Murder, 2nd Degree.)