The People, Respondent,v.Derrick Hill, Appellant.BriefN.Y.October 16, 2014APL-2013-00177 To be argued by PHILIP MORROW (10 Minutes Requested) COVER Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - DERRICK HILL, Defendant-Appellant. B R I E F F O R R E S P O N D E N T CYRUS R. VANCE, JR. District Attorney New York County Attorney for Respondent One Hogan Place New York, New York 10013 Telephone: (212) 335-9000 Facsimile: (212) 335-9288 danyappeals@dany.nyc.gov ALAN GADLIN PHILIP MORROW ASSISTANT DISTRICT ATTORNEYS Of Counsel MARCH 6, 2014 TABLE OF CONTENTS Page TABLE OF AUTHORITIES ........................................................................................... ii PRELIMINARY STATEMENT ......................................................................................... 1 INTRODUCTION................................................................................................................ 2 THE EVIDENCE AT TRIAL ............................................................................................ 4 The People’s Case ....................................................................................................... 4 The Defense Case ....................................................................................................... 9 POINT ..................................................................................................................................... 9 THE TRIAL COURT PROPERLY EXERCISED ITS DISCRETION WHEN IT DETERMINED THAT DEFENSE COUNSEL HAD OPENED THE DOOR TO LIMITED TESTIMONY REGARDING DEFENDANT’S REFUSAL TO ANSWER QUESTIONS (Answering Defendant’s Point). ................................................................. 9 -ii- TABLE OF AUTHORITIES FEDERAL CASES Dickerson v. United States, 530 U.S. 428 (2000).............................................................. 25 Doyle v. Ohio, 426 U.S. 610 (1976) ....................................................................... 18, 20-21 Earnest v. Dorsey, 87 F.3d 1123 (10th Cir. 1996) ............................................................ 20 Kibbe v. DuBois, 269 F.3d 26 (1st Cir. 2001) ............................................................ 20, 26 McMillian v. Gomez, 19 F.3d 465 (9th Cir. 1994) ........................................................... 21 Miranda v. Arizona, 384 U.S. 436 (1966) .................................................................... Passim Oregon v. Hass, 420 U.S. 714 (1975) ................................................................................. 19 Tennessee v. Street, 471 U.S. 409 (1985) ........................................................................... 16 United States v. Carter, 237 Fed.Appx. 886 (4th Cir. 2007) ........................................... 20 United States v. Fairchild, 505 F.2d 1378 (5th Cir. 1975) ................................... 21-22, 29 United States v. Gant, 17 F.3d 935 (7th Cir. 1994) .................................................... 21, 30 United States v. Hasting, 461 U.S. 499 (1983) .................................................................. 20 United States v. Mavrick, 601 F.2d 921 (7th Cir. 1979) ................................................... 30 United States v. O’Keefe, 461 F.3d 1338 (11th Cir. 2006) .............................................. 20 United States v. Reveles, 190 F.3d 678 (5th Cir. 1999).................................................... 21 United States v. Robinson, 485 U.S. 25 (1988) ..................................................... 16, 19-20 United States v. Seltzer, 794 F.2d 1114 (6th Cir. 1986) ................................................... 20 United States v. Vega, 589 F.2d 1147 (2d Cir. 1978) ....................................................... 20 STATE CASES Commw. v. Copenhefer, 553 Pa. 285 (1998) .................................................................... 22 People v. Basora, 75 N.Y.2d 992 (1990) ............................................................................ 16 -iii- People v. Blakeney, 88 N.Y.2d 1011 (1996) ...................................................................... 18 People v. Carroll, 95 N.Y.2d 375 (2000) ........................................................................... 23 People v. Conyers, 49 N.Y.2d 174 (1980) ................................................................... 16, 32 People v. Conyers, 52 N.Y.2d 454 (1981) ......................................................................... 32 People v. Crimmins, 36 N.Y.2d 230 (1975) ...................................................................... 36 People v. Davis, 58 N.Y.2d 1102 (1983) ........................................................................... 31 People v. Davis, 61 N.Y.2d 202 (1984) ............................................................................. 19 People v. Guay, 18 N.Y.3d 16 (2011) ................................................................................ 36 People v. Hall, 18 N.Y.3d 122 (2011) ................................................................................ 18 People v. Harris, 25 N.Y.2d 175 (1969), aff’d sub nom, Harris v. New York, 401 U.S. 222 (1971) ............................. 18-19, 21 People v. Hill, 105 A.D.3d 472 (1st Dep’t 2013) ................................................................ 3 People v. Lewis, 5 N.Y.3d 546 (2005)................................................................................ 31 People v. Massie, 2 N.Y.3d 179 (2004) ............................................................ 17, 23, 27-29 People v. Mateo, 2 N.Y.3d 383 (2004) ................................................................... 17, 27-29 People v. Melendez, 55 N.Y.2d 445 (1982) ....................................................................... 23 People v. Michalek, 82 N.Y.2d 906 (1994) ........................................................................ 10 People v. Morris, 21 N.Y.3d 588 (2013) ....................................................................... 23-24 People v. Paulman, 5 N.Y.3d 122 (2005) .......................................................................... 16 People v. Pavao, 59 N.Y.2d 282 (1983) ............................................................................. 10 People v. Pollock, 50 N.Y.2d 547 (1980) .......................................................................... 23 People v. Reid, 19 N.Y.3d 382 (2012) ......................................................... 17-18, 23, 29-30 People v. Rojas, 97 N.Y.2d 32 (2001) ................................................................................ 17 People v. Williams, 56 N.Y.2d 236 (1982)......................................................................... 23 -iv- State v. Brown, 309 Conn. 469 (2013) ......................................................................... 22, 26 State v. McIntosh, 595 S.E.2d 484 (S.C. 2004) ................................................................. 22 Vitek v. State, 750 N.E.2d 346 (Ind. 2001) ................................................................. 22, 26 STATE STATUTES VTL § 1192(1) ................................................................................................................... 1, 37 VTL § 1192(2) ................................................................................................................... 1, 36 VTL § 1193(1)(c)(i) ............................................................................................................. 1, 2 COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- DERRICK HILL, Defendant-Appellant. BRIEF FOR RESPONDENT PRELIMINARY STATEMENT By permission of the Honorable Victoria A. Graffeo, Associate Judge of the Court of Appeals, Derrick Hill appeals from an order of the Appellate Division, First Department, entered on April 9, 2013. That order affirmed an April 13, 2010 judgment of the Supreme Court, New York County (Daniel P. Conviser, J.), convicting defendant, after a jury trial, of felony Driving While Intoxicated (VTL § 1192[2]/1193[1][c][i]) and Driving While Ability Impaired (VTL § 1192[1]). Defendant was sentenced to a 60-day jail term and five years of probation on the felony, to run concurrently with a 15-day jail term on the misdemeanor. Defendant has completed the jail portion of his sentence and is currently on probation. -2- INTRODUCTION At about 1:00 a.m. on May 9, 2009, Police Officer David Stagliano responded to the scene of a car accident at 23rd Street and Avenue C in Manhattan. Stagliano saw defendant and his nephew standing near defendant’s car, which was damaged and resting on a boulder on a median. Defendant told the officer that a taxi cab had cut him off and that when he swerved to avoid the cab, he crashed into the boulder. Stagliano noticed that defendant had watery and bloodshot eyes, slurred speech, and a moderate smell of alcohol on his breath. He was also unsteady on his feet. Stagliano asked defendant if he had been drinking, and defendant replied that he had consumed one beer before driving. Stagliano arrested defendant and, upon searching his car, recovered a half empty beer bottle from the center console. The police subsequently administered a breath test that determined that defendant’s blood alcohol content was 0.10. Defendant also took a series of coordination tests and failed one of them. By New York County Indictment Number 2281/09, filed on May 21, 2009, a grand jury charged defendant with two counts of Driving While Intoxicated, for driving with a blood alcohol content of 0.08 or more, and two additional counts of Driving While Intoxicated, for driving in an intoxicated condition. As to each of those crimes, defendant was charged with a felony count because he had previously been convicted of Operating a Motor Vehicle Under the Influence of Alcohol in 2006, as well as a misdemeanor count that did not require a prior conviction. See VTL § 1193(1)(c)(i). On February 18, 2010, after suppression hearings not at issue on -3- appeal, defendant proceeded to a jury trial before the Honorable Daniel P. Conviser. On February 22, 2010, the jury convicted defendant of one count of Driving While Intoxicated due to his blood alcohol content, as well as one count of Driving While Ability Impaired, which had been submitted as a lesser included offense of Driving While Intoxicated based on driving in an intoxicated condition. On April 13, 2010, defendant was sentenced as noted above. On appeal to the First Department, defendant complained that the court violated his right to a fair trial by allowing Officer Stagliano to testify on redirect examination that defendant had refused to waive his Fifth Amendment rights. On April 9, 2013, the Appellate Division rejected defendant’s claim and affirmed his conviction. People v. Hill, 105 A.D.3d 472 (1st Dep’t 2013). The court held that the trail judge had appropriately exercised his discretion in determining that defense counsel’s cross-examination questions “created misleading impressions about his post-arrest interactions with the police,” thereby opening the door to “limited testimony” that defendant had declined to make a statement to the arresting officer. Id. In addition, the court found that the trial judge’s thorough limiting instruction, which was crafted by defense counsel, had prevented “any potential prejudice” to defendant. Id. Finally, the court determined that any error in receiving the redirect examination testimony was harmless. Id. -4- Before this Court, defendant argues that the lower courts incorrectly concluded that defense counsel’s cross-examination opened the door to testimony regarding defendant’s pre-trial silence. THE EVIDENCE AT TRIAL The People’s Case At about 1:00 a.m. on May 9, 2009, while Police Officer DAVID STAGLIANO and his partner were on patrol, Stagliano was alerted by another officer to a car accident at 23rd Street and Avenue C in Manhattan (A52–A56 [Stagliano: 2– 6]).1 When Stagliano and his partner arrived at that location, Stagliano saw a 1993 Toyota Camry station wagon on the median between the northbound and southbound lanes of Avenue C. The car’s rear end was resting on top of a boulder, and its front end was damaged (A56, A58 [Stagliano: 6, 8]; People’s Exhibits 1A–1F [photos of intersection]). Defendant and his nephew were standing near the back end of the car (A58–A59 [Stagliano: 8–9]). Stagliano asked defendant what had happened. Defendant responded that a cab had cut him off as he was approaching a traffic light on Avenue C. Defendant claimed that he had swerved to the left to avoid getting hit and drove into the boulder as a result (A56, A59, A60–A61 [Stagliano: 6, 9, 10–11]).2 1 Parenthetical citations preceded by “A” are to the People’s Supplemental Appendix. 2 Stagliano believed that defendant’s account “made sense based on the layout of the street” (A89, A96–A97 [Stagliano: 39, 46–47]). -5- As the two men were talking, Stagliano detected a “moderate smell of alcohol on [defendant’s] breath” (A60 [Stagliano: 10]). Stagliano further noticed that defendant was slightly “swaying on his feet,” that he had “bloodshot watery eyes,” and that his speech was “slightly slurred” (A60 [Stagliano: 10]). Stagliano asked defendant whether he had had anything to drink, and defendant replied that he had had one beer (A56, A62–63 [Stagliano: 6, 12–13]). At that point, Stagliano arrested defendant (A62–63, A98 [Stagliano: 12–13, 48]). Stagliano walked back to defendant’s car and looked through the open driver’s side door (A64 [Stagliano: 14]). In the car’s center console, there was an open bottle of Beck’s beer that was about half empty (A64, A72, A77, A102–A103, A107 [Stagliano: 14, 22, 27, 51–52, 56]; People’s Exhibit 2 [beer bottle]).3 Stagliano and his partner then drove defendant to the Seventh Precinct for a breathalyzer test (A63– A64, A77–A79 [Stagliano: 13–14, 27–29]). At approximately 1:45 a.m., defendant and the officers arrived at the precinct (A79 [Stagliano: 29]). Defendant was cooperative there (A102 [Stagliano: 51]). Stagliano read Miranda warnings to defendant and gave him a form “asking if he understood those rights” (A102 [Stagliano: 51]). Stagliano read each part of the form and asked defendant if he understood (A102 [Stagliano: 51]). After defendant replied 3 Stagliano poured the liquid out of the bottle (A76–A77 [Stagliano: 26–27]). The bottle was in one piece when Stagliano recovered it (A102–A103 [Stagliano: 51–52]). The bottom of the bottle was broken by the time it was introduced into evidence at trial (A75– A76 [Stagliano: 25–26]). -6- yes or no, Stagliano circled the response and initialed next to it (A102 [Stagliano: 51]). When Stagliano asked defendant whether he was “willing to answer any questions,” defendant replied, “No” (A108 [Stagliano: 57]). At about 2:19 a.m., Stagliano brought defendant to the intoxicated driver testing unit (“IDTU”), where Police Officer MANUEL ALMANZAR administered a breath test on an Intoxilyzer 5000 EN machine (A79–A81 [Stagliano: 29–31]; A196– A198 [Almanzar: 145–47]; People’s Exhibit 10 [Almanzar’s breath analysis operator certificate]).4 The accuracy of the Intoxilyzer test results can be “interfer[ed] with” if the subject smokes, vomits, burps, eats, or drinks anything in the 20 minutes before taking the test (A201, A243, A248–A250 [Almanzar: 150, 192, 197–99]). Stagliano had watched defendant “constantly” for the half an hour he had been in a holding cell at the precinct prior to the test (A79–A80 [Stagliano: 29–30]). Defendant had not had anything to eat or drink, or vomited or burped, while in police custody (A63–64, A77–A80 [Stagliano: 13–14, 27–30]). The breath test revealed that defendant had a blood alcohol content of 0.10 (A209–A212 [Almanzar: 158–61]; People’s Exhibit 3 [video of test]; People’s Exhibit 9 [report of defendant’s test]). 4 Almanzar took an NYPD training course on the operation of the Intoxilyzer 5000 EN and then passed an examination in order to receive his certification as a breath analysis operator (A196–A198 [Almanzar: 145–47]). Almanzar had conducted about 115 breath tests using the Intoxilyzer 5000 EN (A198–A199 [Almanzar: 147–48]). When Almanzar administered the test, he ensured that the Intoxilyzer was working properly by having the machine conduct its calibration and diagnostic process, which indicated that the machine was calibrated properly (A201–A211 [Almanzar: 150–60]). -7- The police made a video recording of defendant’s test, which IDTU supervisor Detective COLEEN SCHUTT reviewed (A157–A158 [Schutt: 106–07]; A200–A201, A204–A205 [Almanzar: 149–50, 153–54]; People’s Exhibit 3). Schutt testified that the test was properly administered, and that the machine did not report any errors. Schutt also reviewed several inspection reports and the testing report, all of which showed that the Intoxilyzer was working properly (A124–A126, A141–A158, A166–A168, A174–A177 [Schutt: 73–75, 90–107, 115–17, 123–26]; People’s Exhibit 5 [simulator solution lot certification]; People’s Exhibit 6 [calibration report]; People’s Exhibit 7 [field unit inspection report 5/8/09]; People’s Exhibit 8 [field unit inspection report 5/18/09]; People’s Exhibit 9).5 Defendant agreed to take a series of coordination tests, which included a walk- and-turn test, a one-legged stand test, and a finger-to-nose test (A214–A216, A264– A273 [Almanzar: 163–65, 213–22]; People’s Exhibit 3). Defendant properly performed the walk-and-turn test and the one-legged stand test (A211–A215, A261– A271 [Almanzar: 160–64, 210–20]). However, defendant failed in his attempt to perform the finger-to-nose test because he touched his left finger to his nose when he 5 Detective Schutt explained that the Intoxilyzer 5000 EN uses infrared light to determine the amount of ethyl alcohol in a breath sample, and then converts that amount into blood alcohol content. The machine has a variety of built-in safeguards and diagnostic systems to guarantee the accuracy of the test results (A116–A126, A138–A140, A147–A148, A154–A163, A172–A179 [Schutt: 65–75, 87–89, 96–97, 103–12, 121–28]). The IDTU officers conduct periodic tests to ensure that the machine is properly calibrated (A124– A126, A137–A139, A141–A144, A149–A158, A166–A168 [Schutt: 73–75, 86–88, 90–93, 98–107, 115–17]). -8- was instructed to touch his right finger to his nose, and vice-versa (A214–A215, A242–A243 [Almanzar: 163–64, 191–92; People’s Exhibit 3). Dr. MARINA STAJIC, the director of forensic toxicology at the Office of the Chief Medical Examiner, testified as an expert in toxicology and on alcohol’s effect on a person’s ability to drive (A289–A294 [Stajic: 238–43]). The two most common ways to determine a person’s blood alcohol content are to test a sample of the person’s breath and to test a sample of the person’s blood (A296–A297 [Stajic: 245–46]). Breath testing devices such as the Intoxilyzer convert breath alcohol concentration to blood alcohol content using a mathematical formula called a partition ratio. That ratio is 2,100 to 1, which was determined by taking the average partition ratio in the population (A296–A298, A310–A311 [Stajic: 245–47, 259–60]; A161–A163 [Schutt: 110–12]).6 While studies revealed that this ratio could be higher or lower for certain individuals, the “vast majority” of people have the same partition ratio used by the Intoxilyzer (A297–A298, A313–A314 [Stajic: 246–47, 262–63]). In every study that Stajic knew of except one, the minimum partition ratio in the population was 1,800 to 1, and if a person with that ratio blew a 0.10 on a breath testing machine, their actual blood alcohol content would be 0.085 (A297–A298, A301–A302, A313 [Stajic: 246– 47, 250–51, 262]). 6 Shutt testified that she believed the average partition ratio of the general population was “close to 1800 to 1” (A185 [Schutt: 134]). -9- It is an “established fact” that alcohol adversely affects all functions necessary to safely operate a motor vehicle. With a blood alcohol content of 0.10, “any individual would be too impaired to safely operate a motor vehicle” (A296, A298– A299 [Stajic: 245, 247–48]). A person’s blood alcohol level rises as long as he continues to drink alcohol (A299 [Stajic: 248]). If a person stopped drinking for one and one-half hours, he would be in the “post-absoprtive stage,” meaning that his blood alcohol level would have started to decrease (A300 [Stajic: 249]). The Defense Case Defendant did not present any evidence at trial. POINT THE TRIAL COURT PROPERLY EXERCISED ITS DISCRETION WHEN IT DETERMINED THAT DEFENSE COUNSEL HAD OPENED THE DOOR TO LIMITED TESTIMONY REGARDING DEFENDANT’S REFUSAL TO ANSWER QUESTIONS (Answering Defendant’s Point). Following his arrest, defendant invoked his Miranda rights and refused to answer questions at the police precinct. The People made no reference to defendant’s silence during their direct examination of Officer Stagliano. However, on cross- examination, defense counsel asked Stagliano whether he had read defendant his rights, whether he had provided defendant with a form asking if he understood his rights, and whether defendant had signed that form. In addition, counsel asked -10- Stagliano if defendant “was cooperative at the precinct.” These questions were asked in aid of the defense strategy to criticize the police for failing to ask defendant for a blood sample, a supposedly more accurate judge of defendant’s blood alcohol content than the breath test the police did administer. The trial judge ruled that counsel’s cross-examination opened the door to testimony that, after defendant was advised of his rights, he refused to answer questions. Thus, he authorized the People to elicit that information briefly. But he directed the People not to mention the issue in summation. In its final charge, the court gave a limiting instruction, drafted by defense counsel, explaining that it was impermissible for the jury to draw a negative inference from defendant’s refusal to answer police questions. As defendant sees it, counsel did not open the door to evidence of defendant’s pre-trial silence because his questions did not elicit “misleading or incomplete” testimony (Defendant’s Brief: 16). Notably, defendant does not claim that the redirect questions themselves amounted to a Fifth Amendment violation. Indeed, at trial, counsel did not argue that eliciting evidence of defendant’s silence would violate his Fifth Amendment rights, so such a claim would be unpreserved. See People v. Michalek, 82 N.Y.2d 906, 907 (1994); People v. Pavao, 59 N.Y.2d 282, 292 n.3 (1983). Thus, defendant’s claim is simply an evidentiary one. On that score, the trial court’s determination that defendant indeed opened the door to evidence that he refused to answer questions was entrusted to that court’s -11- discretion. Even setting aside this Court’s limited scope of review of discretionary determinations, there is no basis for second-guessing the trial court’s determination. By eliciting testimony that defendant was cooperative at the precinct and signed the Miranda form after having been advised of his rights, counsel opened the door to evidence that would provide the jury with an accurate and complete portrayal of defendant’s interactions with the police at the precinct, which cast doubt on defendant’s claim that he would surely have agreed to anything the police asked him to do, including providing a blood sample. In any event, any error in the court’s ruling was harmless in light of the overwhelming evidence of defendant’s guilt. A. In the defense opening, counsel argued that defendant’s blood was a “missing” piece of evidence that “the police had every opportunity to collect,” and that a blood sample was more reliable than the Intoxilyzer test result (A48–A49). Next, counsel claimed that the police testimony would show that defendant had been “cooperative” and “did everything that they asked him to do” (A49). After claiming again that defendant had done “everything” that the police had asked of him, counsel faulted the police for not requesting a blood sample from defendant when they purportedly needed one (A49–A50). On direct examination, Officer Stagliano testified that he had transported defendant to the precinct house, where defendant had taken a breath test as well as several coordination tests (A79–A83). On cross-examination, defense counsel asked -12- Stagliano about whether defendant had been “polite,” “cooperative” and responsive to questioning at the scene of the accident, and Stagliano said that he had been (A96– A99). Counsel also inquired as to whether defendant had “resisted” arrest, and Stagliano testified that he had not (A101–A102). Counsel then turned to defendant’s behavior at the precinct: Counsel: When you got to the precinct you read [defendant] his rights? Stagliano: Yes. Counsel: You gave him a form asking him if he understood these rights? Stagliano: Yes. Counsel: He read the form? Stagliano: I read the form to him, I read each part out, asked him if he understood, he would say yes or no, I circled yes and then I initialed next to it. Counsel: He signed the form? Stagliano: Yes, he did. Counsel: He did in fact take a breath test at the precinct? Stagliano: Yes, he did. Counsel: We saw that on the video. When you got to the precinct he did in fact take a coordination test? Stagliano: Yes, he did. Counsel: He was cooperative at the precinct? Stagliano: Yes, he was. (A102). -13- Shortly thereafter, counsel had Stagliano confirm that various hospitals and the Office of the Chief Medical Examiner were near the precinct and the accident site (A103–A105). Then, counsel had Stagliano acknowledge that he had not asked defendant whether he would submit to a blood test (A105). At the conclusion of the cross-examination, the prosecutor sought permission to elicit from Stagliano that when Stagliano asked defendant, as part of the Miranda litany, whether he was willing to answer questions, defendant replied that he was not (A105–A106). The prosecutor noted that defense counsel’s “argument here is the defendant was cooperative,” and she submitted that defense counsel “opened the door” by cross-examining Stagliano regarding the Miranda waiver card and asking him whether defendant was cooperative (A105–A106). In reality, though, defendant had “refused to answer questions” (A105–A106). Defense counsel opposed the prosecutor’s request. He protested that he had not asked Stagliano whether defendant had refused to answer questions, but only whether he had “cooperated” by signing the Miranda form and doing “what he was asked to do” (A106). The court ruled that defense counsel opened the door to testimony about whether defendant had refused to answer any questions (A106). On redirect examination, the prosecutor asked Stagliano: Prosecutor: You read the defendant his Miranda rights? Stagliano: Yes, I did. -14- Prosecutor: At the end of those rights did you ask defendant whether he was willing to answer any questions? Stagliano: Yes Prosecutor: What was his response to that? Stagliano: No. (A108). The court revisited the issue before the parties’ summations, reiterating that defense counsel had opened the door to testimony that defendant had refused to answer questions after receiving Miranda warnings by “questioning of the witness regarding the administration of the Miranda warnings” (A127). The court further explained that it had admitted the evidence to “indicate to [sic] the defendant’s condition” at the “time the officer was talking to him and to provide a full narrative of what was happening” (A127). However, the court stressed that it did not “want there to be an implication in the jurors’ minds because the defendant didn’t answer questions that that can be held against him” (A127). Thus, the court instructed the prosecutor “not to make argument to that effect on summation” (A127). The court additionally asked defense counsel to consider whether he wanted a limiting instruction. The judge suggested that it was not “necessarily beneficial” to instruct the jury on the point, since “it was just one question that was asked,” but left it to counsel to decide whether he should issue such an instruction and whether that instruction should be delivered at that point or in the final charge (A127–A128). The -15- instruction would explain that defendant had no obligation to answer questions, and that the jurors could not draw any inferences of guilt from defendant’s silence (A128). On summation, defense counsel argued that defendant “never got [the] option” to submit to a blood sample (A336–A337). Counsel claimed that the evidence showed that defendant had been “cooperative,” so the police could just have asked defendant to agree to provide a blood sample at one of the hospitals near the scene of the accident (A341, A366–A367). Further, counsel contended that the only accurate way to determine a person’s partition ratio—the number used to convert breath alcohol content to blood alcohol content—was to draw his blood at the same time he takes a breath test (A347–A348). In her summation, the prosecutor made no reference to defendant’s refusal to speak to the police. Defense counsel submitted a written proposal for a limiting instruction, which the court agreed to issue (A323–A324). Thus, per counsel’s request, the court instructed the jury that: On the People’s redirect examination of Officer Stagliano in this case, the District Attorney asked Officer Stagliano about [defendant’s] answer to the last question on the sheet detailing his Miranda rights. That is his right to remain silent and his right to an attorney. Specifically, the District Attorney asked Officer Stagliano what [defendant] wrote next to the question about whether he would be willing to answer any additional questions. Officer Stagliano answered that [defendant] answered no. Under the law, [defendant] is not required to answer any questions by the police. The jury is not permitted to draw a negative -16- inference from the fact [that] [defendant] exercised that right. (A405–A406). Counsel voiced no objection to any portion of the court’s charge (A426). B. Under both the federal and state constitutions, a defendant cannot be compelled to incriminate himself. U.S. CONST. amend. V; N.Y. CONST., art. I, §6. Courts have interpreted those provisions to mean that a person has the right to remain silent after his arrest. See Miranda v. Arizona, 384 U.S. 436, 467–68 (1966); People v. Paulman, 5 N.Y.3d 122, 129–30 (2005). Evidence of a defendant’s decision to exercise that right “cannot be used by the People as part of their direct case.” People v. Basora, 75 N.Y.2d 992, 993 (1990); see also Miranda, 384 U.S. at 468 n.37 (1966); People v. Conyers, 49 N.Y.2d 174, 177 (1980) (“Conyers I”). However, the purpose of a criminal trial is to answer the factual question of whether the defendant is guilty of the charged crimes, and it is therefore “important that both the defendant and the prosecutor have the opportunity to meet fairly the evidence and arguments of one another.” United States v. Robinson, 485 U.S. 25, 33 (1988); see also Tennessee v. Street, 471 U.S. 409, 415 (1985) (criminal trials have a “truth-seeking function”). Thus, a defendant, through his conduct at trial, may effectively waive his constitutional rights and “open the door” to otherwise precluded evidence. A party can open the door to inadmissible evidence “by offering evidence, -17- or making an argument based on the evidence, which might otherwise mislead the factfinder[.]” People v. Massie, 2 N.Y.3d 179, 180–81 (2004). This Court has applied the opening the door theory in a variety of situations, including when a constitutional guarantee would otherwise preclude eliciting the information in question. For instance, in People v. Reid, 19 N.Y.3d 382, 388–89 (2012), this Court held that “defense counsel’s misleading questioning and argument” related to a man named McFarland opened the door to a non-testifying co- defendant’s statement that he had told the police that McFarland had not been present at the shooting, even though the statement was otherwise inadmissible on Confrontation Clause grounds. Id. Moreover, the Court has held that a defendant may open the door to suppressed or otherwise inadmissible evidence by eliciting testimony that references the inadmissible evidence or that only presents part of the picture to the jury. See, e.g., People v. Mateo, 2 N.Y.3d 383, 425–29 (2004) (the defendant opened the door to admission of his full confession, portions of which had been precluded); Massie, 2 N.Y.3d at 184–85 (trial court properly ruled that questioning about inadmissible photo identification procedure would open the door to admission of suppressed lineup identification); People v. Rojas, 97 N.Y.2d 32, 38–39 (2001) (the defendant opened the door to evidence of attempted prison assault, which had been precluded by court’s pretrial Molineux ruling, by arguing that he had been unjustly placed in solitary confinement); People v. Blakeney, 88 N.Y.2d 1011, 1012 (1996) (by claiming -18- that he did not know his alleged accomplice to a drug sale, the defendant opened the door to evidence that he and the same accomplice committed a “nearly identical offense” 12 days later); see also People v. Hall, 18 N.Y.3d 122, 132–33 (2011) (prosecutor “quite reasonably” suggested that, by testifying that he did not know defendant Hall, codefendant Freeman opened the door to evidence that he and Hall had committed a previous crime together). As defendant does not actively dispute, (see Defendant’s Brief: 19), these principles apply with equal force in the context of a defendant’s Fifth Amendment rights. The Court has held that a prosecutor can use a statement obtained by the police in violation of the defendant’s Miranda rights to impeach the defendant’s trial testimony that “was at complete variance” with his pre-trial statement to the police. People v. Harris, 25 N.Y.2d 175 (1969), aff’d sub nom, Harris v. New York, 401 U.S. 222 (1971); see also Reid, 19 N.Y.3d at 388 (noting the Court’s “precedent that statements taken in violation of Miranda . . . are admissible if a defendant opens the door by presenting conflicting testimony”). And, it “goes almost without saying that the fact of post-arrest silence could be used by the prosecution to contradict a defendant who testifies to an exculpatory version of events and claims to have told the police the same version upon arrest.” Doyle v. Ohio, 426 U.S. 610, 619 n.11 (1976). Similarly, when a defendant takes the stand and puts his pretrial silence at issue, he opens the door to the prosecutor addressing his silence on summation. See People v. Davis, 61 N.Y.2d 202, 207 (1984). -19- In affirming this Court’s decision in Harris, the Supreme Court explained that the “shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances.” Harris, 401 U.S. at 226; see also Oregon v. Hass, 420 U.S. 714, 721–22 (1975); People v. Fardan, 82 NY.2d 638, 646 (1993). Subsequently, in Robinson, 485 U.S. at 25, the Supreme Court reiterated that a defendant could not improperly use his Fifth Amendment rights as a mechanism to frustrate the truth-seeking process. There, the defendant did not testify at trial, and defense counsel argued on summation that the government had unfairly denied the defendant an opportunity to explain himself. Id. at 27–28. The trial judge determined that the defendant had opened the door and allowed the prosecutor to comment in a rebuttal summation that the defendant could have testified at trial and explained his actions to the jury. Id. at 28– 29. Stressing that the prosecutor’s comments had to be examined in context, the Supreme Court held that the prosecutor’s comments that the defendant “could have explained to the jury his story did not in the light of the comments by defense counsel infringe upon [the defendant’s] Fifth Amendment rights.” Id. at 31. The Court reasoned that the “protective shield of the Fifth Amendment” should not be “converted into ‘a sword that cuts back on the area of legitimate comment by the prosecutor on the weaknesses in the defense case.’” Id. at 32 (quoting United States v. Hasting, 461 U.S. 499, 515 [1983] [Stevens, J., concurring]). -20- Although this Court has not squarely addressed the issue, many federal circuit courts of appeal have held that a defendant opens the door to use of his post-arrest silence if he suggests that he actively cooperated with the authorities but fails to mention his refusal to speak with them after receiving Miranda warnings. Indeed, it is a “widely established” principle that a defendant who “attempts to convince a jury that he was of a cooperative spirit” opens the door to evidence regarding his lack of cooperation. United States v. O’Keefe, 461 F.3d 1338, 1348 (11th Cir. 2006); see, e.g., United States v. Carter, 237 Fed.Appx. 886, 887 (4th Cir. 2007) (“A prosecutor may also question a defendant about his post-arrest silence for the purpose of rebutting the impression that he cooperated with law enforcement”); Kibbe v. DuBois, 269 F.3d 26, 34 (1st Cir. 2001) (“Several circuits . . . have held that the Doyle restriction on a defendant’s post-arrest silence does not apply when a defendant has created the impression through his testimony and defense presentation that he fully cooperated with the authorities when, in fact, he had not”); Earnest v. Dorsey, 87 F.3d 1123, 1135 (10th Cir. 1996) (“reference to postarrest silence is permissible for rebuttal purposes when a defendant implies that he cooperated with the police”); United States v. Seltzer, 794 F.2d 1114, 1122 (6th Cir. 1986) (the defendant’s attempt to portray himself as a willing and cooperative witness opened the door to cross-examination that he had initially asserted his Fifth Amendment privilege); United States v. Vega, 589 F.2d 1147, 1152 (2d Cir. 1978) (“There is ample authority that a defendant’s silence even after Miranda warnings have been given is ‘admissible for the purpose of -21- rebutting the impression which [the defendant] attempted to create’ in order to build himself up in the eyes of the jury”) (internal citation omitted); United States v. Fairchild, 505 F.2d 1378, 1383 (5th Cir. 1975) (evidence of the defendant’s silence “was admissible for the purpose of rebutting the impression which he attempted to create: that he cooperated fully with the law enforcement authorities”). The federal circuit courts have applied this rule whether it is the defendant’s testimony or the presentation of defense counsel that seeks to create a misleading impression of the defendant’s cooperation with authorities. See McMillian v. Gomez, 19 F.3d 465, 469 (9th Cir. 1994) (it was proper for the prosecutor to question detective about the defendant’s noncooperation after defense counsel “had sought to give the impression that [the defendant] was cooperative with the police”); United States v. Gant, 17 F.3d 935, 941 (7th Cir. 1994) (a defendant can open the door to government use of his post-arrest silence “by his own remarks about his post-arrest behavior or by defense counsel’s questioning”). These holdings are based on the same principles of fairness and truth-seeking that underpinned the decisions by this Court and the Supreme Court in Harris. See United States v. Reveles, 190 F.3d 678, 685 (5th Cir. 1999) (“When a defendant attempts to convince a jury that he was of a cooperative spirit, Doyle does not tie the hands of prosecutors who attempt to rebut this presentation by pointing to a lack of cooperation”). Accordingly, when a criminal defendant broaches the otherwise-inadmissible subject of his post-arrest silence, “the bar [is] lowered and he [has] discarded the shield which the law had created to protect -22- him.” Fairchild, 505 F.2d at 1383. Once a defendant puts his pre-trial silence at issue, he “open[s] the door to a full and not just a selective development of that subject.” Id. The highest appellate courts in several states have also held that a defendant’s conduct at trial can open the door to otherwise inadmissible evidence of his pre-trial silence. For instance, the Supreme Court of Connecticut held that a defense attorney’s efforts to introduce “cherry-picked evidence of the defendant’s candor” in answering a state trooper’s questions opened the door to evidence from the prosecutor that “there was a limit to the defendant’s cooperation.” State v. Brown, 309 Conn. 469, 480 (2013). Other state high courts have also recognized that, by suggesting that he was cooperative with the authorities, a defendant opens the door to evidence regarding the actual extent of his cooperation. See, e.g., State v. McIntosh, 595 S.E.2d 484, 491 (S.C. 2004) (a defendant can open the door to cross-examination regarding his silence “by testifying or creating the impression through his defense presentation that he has cooperated with the police when, in fact, he has not”); Vitek v. State, 750 N.E.2d 346, 351 (Ind. 2001) (“Because Defendant elicited evidence to suggest that he had cooperated, it was appropriate for the prosecution to introduce [evidence of Defendant’s refusal to make a videotaped statement] for the limited purpose of rebuttal”); Commw. v. Copenhefer, 553 Pa. 285, 302–04 (1998) (the defendant’s testimony that he was “entirely cooperative with investigators” opened -23- the door to comments by the prosecutor that the defendant invoked his right to remain silent so as not to answer “the most incriminating questions put to him”). The resolution of “‘door-opening’ issues” is committed to the discretion of the trial court, Massie, 2 N.Y.3d at 184, and whether a defendant has opened the door to otherwise inadmissible evidence necessitates a case-specific inquiry. Reid, 19 N.Y.3d at 388. The trial court must determine “whether, and to what extent, the evidence or argument said to open the door is incomplete and misleading, and what if any otherwise inadmissible evidence is reasonably necessary to correct the misleading impression.’” Id. (quoting Massie, 2 N.Y.3d at 184). Moreover, the extent of redirect examination is, “for the most part,” committed to the “sound discretion of the trial court.” People v. Melendez, 55 N.Y.2d 445, 451 (1982). “[I]n the usual case, appellate review of the exercise of discretion by the trial court in any particular instance ends in the intermediate appellate court[.]” People v. Pollock, 50 N.Y.2d 547, 550 (1980). Thus, unless the trial court has abused its discretion as a matter of law, its determination is beyond review by the Court of Appeals. See, e.g., People v. Morris, 21 N.Y.3d 588, 597 (2013); People v. Williams, 56 N.Y.2d 236, 239 (1982); see also People v. Carroll, 95 N.Y.2d 375, 385 (2000) (“Trial courts are accorded wide discretion in making evidentiary rulings and, absent an abuse of discretion, those rulings should not be disturbed on appeal”). As a result, regardless of whether the opposite ruling would have been reasonable or even preferable, the trial court’s ruling -24- cannot be disturbed by the Court of Appeals if it was not an abuse of discretion as a matter of law. See Morris, 21 N.Y.3d at 597. C. Based on the standards above, the trial judge acted well within his discretion in concluding that defense counsel opened the door to evidence that defendant refused to be questioned by the police. After all, defendant made his purported cooperation with the police a cornerstone of his defense. First, the stress on defendant’s purported cooperation with police efforts to investigate the case implied that he must not have been drunk, for he had nothing to hide from the police. Beyond that, defendant expressly contended that, given his alleged cooperation, he would have consented to a police request that he provide a blood sample, which supposedly would have yielded more reliable evidence of defendant’s blood alcohol content than the breath test the police did administer. Indeed, in his opening statement, defense counsel expressly argued to the jurors that because defendant was “cooperative” and did “everything that [the police] asked him to do,” the police were wrong not to ask defendant to submit to a blood test (A49). Likewise, in summation, counsel asserted that because defendant had been “cooperative,” he surely would have consented to a blood test if he had been asked (A341, A366–A367). To support this theory, counsel asked Officer Stagliano whether defendant “was cooperative at the precinct,” and the officer answered in the affirmative (A102). Counsel went further, making it appear that defendant willingly went along with every -25- investigative step the officers sought to take. To that end, counsel had Stagliano confirm that defendant had taken breath and coordination tests at the precinct. As part of that strategy, counsel elicited testimony establishing that Stagliano had advised defendant of his rights, and that defendant had read and signed a form “asking him if he understood [his] rights” (A102). Upon hearing only that a suspect has “cooperated,” an average person would reasonably conclude that the suspect did everything asked of him by the police. This jury certainly would have reached that conclusion upon hearing defendant’s cross- examination and opening and summation comments. Moreover, from defendant’s cross-examination the jurors knew that Stagliano had advised defendant of his “rights,” and they would certainly have realized that this included the right to remain silent.7 Thus, Stagliano’s cross-examination strongly risked leaving the jurors with the incorrect impression that defendant’s “cooperation” included agreeing to answer questions from the police. That is precisely the impression defendant wanted to leave with the jury, so they would fault the police for not asking defendant to provide a blood sample, a request defendant supposedly would have complied with like all the other requests. 7 See Dickerson v. United States, 530 U.S. 428, 443 (2000) (“Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture”). -26- Of course, what the jury would not have understood from Stagliano’s cross- examination was that, although defendant was generally cooperative with the officers, that was true only up to a point, and he actually rebuffed one of their requests. Thus, in response to the defense strategy carved out during Stagliano’s cross-examination and articulated during counsel’s statements to the jury, it was only fair that the People be permitted to elicit testimony that was contrary to that defense and would provide the jury with an accurate understanding of what defendant’s “cooperation” entailed. See, e.g., Kibbe, 269 F.3d at 34 (defense strategy that conveyed “a picture of full cooperation to the jury, without getting too much into the specifics of just what that cooperation entailed,” opened the door to prosecutor correcting erroneous impression that that the defendant had explained to the police the reason he fled); Brown, 309 Conn. at 480 (by introducing “cherry-picked” evidence of the defendant’s cooperation, counsel opened the door to evidence “that there was a limit to the defendant’s cooperation”); Vitek, 750 N.E.2d at 351 (counsel’s cross-examination suggesting that the defendant was cooperative opened the door to evidence that the defendant refused to make a videotaped statement). As the trial judge put it, the “full narrative” was necessary to correct any misimpression from the cross-examination regarding defendant’s conduct in general, and execution of the Miranda waiver form in particular, that defendant simply complied with every police request. Beyond counsel’s efforts to convince the jury that defendant was entirely cooperative with the police, counsel’s questions about the Miranda waiver form, -27- standing alone, opened the door to evidence that defendant did not agree to waive his rights. From counsel’s cross-examination, the jurors knew that defendant read and signed a form “advising him of his rights.” However, the jury had no way to know what defendant’s signature was supposed to convey. Based on the incomplete evidence, it would have been reasonable for the jurors to believe that defendant had signed the form to indicate that he was willing to answer questions. Naturally, then, the jurors would have been left to wonder whether defendant actually made a statement, and there was a danger that the jurors would think that the People did not want them to hear what defendant might have said at the precinct. By allowing the People to elicit testimony that defendant had refused to answer questions, the court effectively corrected any misimpression left by counsel’s cross-examination regarding the Miranda waiver form. The trial court’s ruling finds support in this Court’s Mateo and Massie decisions—cases where the defendants selectively elicited evidence that would have misled the jury without the context provided by otherwise precluded evidence. In Mateo, 2 N.Y.3d at 417–24, the defendant was charged with killing Matos, but he also confessed to the murders of three other people during police interrogation. The trial court ordered the People not to elicit the defendant’s statements about the three uncharged homicides. Id. at 417–19. However, during his cross-examination of one of the People’s witnesses, defense counsel argued that the defendant falsely confessed to the murder of Matos in order to cover up for his wife. Id. at 425–26. The trial -28- court determined that, “for the jury to assess defendant’s claim that his admission to the murder of Matos was a lie, it had to view that statement in its extraordinary context.” Id. at 426–27. This Court subsequently held that the defense strategy had opened the door to the precluded portions of the defendant’s confession. Id. at 339, 427. In Massie, 2 N.Y.3d at 179, two witnesses made photographic and lineup identifications of the defendant that were inadmissible at trial. Following an independent source hearing, the trial court denied a defense motion to suppress the witnesses’ in-court identifications of the defendant. Id. at 182. Before trial, defense counsel determined that he wished for the jury to hear about the witnesses’ viewing of the photographs so long as it did not also hear about the lineup identifications. Id. The trial court ruled that cross-examining the witnesses about the photographic identifications would open the door to evidence about the lineup identifications. Id. This Court held that the trial court acted “well within its discretion in concluding that the course defendant wanted to take would mislead the jury, and that the jury should hear about both of [the witness’s] pretrial identifications, if it heard about either of them.” Id. at 185. Here, too, the evidence elicited by defense counsel regarding the Miranda waiver form was deliberately incomplete. From counsel’s cross-examination of Stagliano, the jury learned that defendant read and signed the waiver form to indicate that he understood his rights. However, the jury did not hear that defendant had -29- actually refused to answer questions. Stagliano’s testimony could have misled the jury into thinking that defendant had actually made a statement to the police that the People had omitted from the trial evidence. And the defense affirmatively tried to convince the jury that defendant had agreed to submit to every investigative technique the police wished to employ, in an effort to suggest that defendant surely would have agreed to provide a blood sample if the police had only asked him for one. Therefore, as in Mateo and Massie, defense counsel opened the door to precluded evidence that would allow the jury to consider defendant’s “cooperation” and execution of the waiver form in its true context. The underlying reasoning for the trial court’s ruling was entirely in keeping with cases from this Court and the Supreme Court that have held that a defendant cannot employ his constitutional rights, and in particular his Fifth Amendment right to remain silent, as both a sword and a shield. In this case, defendant sought to use his Fifth Amendment right as a sword, by eliciting testimony from Officer Stagliano to suggest that he was cooperative at the precinct, all the while knowing that it would have been improper for Stagliano to mention that defendant had refused to answer questions. Through his trial strategy, defendant set aside his Fifth Amendment protection and opened the door to a full and fair exploration of his behavior at the precinct. See Fairchild, 505 F.2d at 1383. The trial court’s ruling merely made sure that the defense strategy did not unfairly mislead the jury. Cf. Reid, 19 N.Y.3d at 388 (“If evidence barred under the Confrontation Clause were inadmissible irrespective of -30- a defendant’s actions at trial, then a defendant could attempt to delude a jury ‘by selectively revealing only those details of a testimonial statement that are potentially helpful to the defense, while concealing from the jury other details that would tend to explain the portions introduced and place them in context’”) (internal citation omitted). Significantly, the People rebutted defendant’s claims in an extremely restrained manner. The prosecutor asked only two questions about defendant’s refusal to answer police questioning. This evidence was no more than was “reasonably necessary” to correct the misimpression of defendant’s cooperation caused by counsel’s cross-examination of Stagliano. See Reid, 19 N.Y.3d at 388. In addition, the prosecutor never mentioned that testimony again, let alone suggested that the jury should draw a negative inference from it. Accordingly, the prosecutor’s extremely limited use of defendant’s pre-trial silence was not error. Compare United States v. Mavrick, 601 F.2d 921, 932–34 (7th Cir. 1979) (in light of the defendant’s testimony on direct it was not error for government to ask him whether he had opportunity to explain himself to police, especially because “the government did not argue the defendant’s silence to the jury”), with Gant, 17 F.3d at 943 (it was error for the prosecutor to argue on summation that the defendant’s silence was consistent “with the behavior of a confederate in crime”). Importantly, the court ensured that defendant would not suffer any possible prejudice from evidence that he refused to answer questions. The court instructed the -31- prosecutor not to make any summation arguments about the evidence. In addition, the trial judge issued a limiting instruction after admitting evidence of defendant’s post-arrest silence. See Fardan, 82 N.Y.2d at 646 (if precluded evidence is admitted on door-opening theory, “the court should issue limiting instructions”). After allowing defense counsel to decide whether there should be a curative instruction, the court issued the very curative instruction drafted by counsel. Specifically, the court told the jury that defendant had a constitutional right not to speak to the police and that the jury was “not permitted to draw a negative inference from the fact [that] [defendant] exercised that right” (A405–A406). Of course, jurors are presumed to have followed the court’s instructions, see People v. Davis, 58 N.Y.2d 1102, 1104 (1983), meaning that they would not have considered defendant’s post-arrest silence for an inappropriate purpose. Given that the trial court issued the curative instruction proposed by defense counsel, defendant waived his current complaints regarding the instruction. See People v. Lewis, 5 N.Y.3d 546, 551 (2005). In any event, defendant’s arguments about the curative instruction are meritless. Defendant contends that the trial judge himself did not believe that any kind of curative instruction would be effective (Defendant’s Brief: 25). In reality, the court merely suggested to counsel that an instruction might not even be necessary, because the jury was unlikely to dwell on “just one question that was asked” (A128). Further, defendant incorrectly claims that the court was “unable to give any meaningful guidance” on how the jury should -32- consider the evidence (Defendant’s Brief: 25). The only guidance the jury truly needed was precisely that which the court provided: the court cautioned the jury that defendant was not required to answer questions from the police, and that it was impermissible to draw a negative inference from the fact that defendant exercised his right to silence (A406). Of course, if defendant thought that more detailed “guidance” would have been advisable, he should have placed it in the written instruction that he gave the trial court to deliver. Defendant now raises a series of complaints about the trial court’s ruling, but none of them are remotely persuasive. Defendant claims that the evidence of his silence was inadmissible because it was not “highly probative” (Defendant’s Brief: 21– 22). Defendant’s reliance on People v. Conyers, 52 N.Y.2d 454 (1981) (“Conyers II”), shows the weakness of his position in the particular context of this trial and the People’s use of that evidence here. In Conyers, the defendant took the stand at trial, and the prosecutor impeached his testimony with his failure to explain his exculpatory version of events to the arresting officer. Id. at 457–58. This Court noted that, as a general rule, “evidence of an individual’s pretrial failure to speak when confronted by law enforcement officials is of extremely limited probative worth,” because it is ambiguous and subject to innocent interpretations. Id. at 458. Here, in contrast, the People did not use evidence of defendant’s silence to impeach him at trial or argue that his defense was not worthy of belief. Instead, the People used it merely to rebut the defense claims that defendant was fully cooperative and did everything the police -33- asked of him. For the reasons detailed above, the testimony was entirely relevant and probative on that limited issue. According to defendant, though, counsel elicited testimony from Stagliano regarding the Miranda waiver form simply in order to demonstrate that defendant was not “significantly affected by his consumption of alcohol” (Defendant’s Brief: 15). However, the record does not support defendant’s assertion. On the contrary, during the colloquy before the trial court’s ruling on this issue, counsel made clear that he indeed brought out the testimony to show that defendant “cooperated, he did what he was asked to do” (A106). And, of course, he expressly made that very argument to the jury during his opening statement and summation (A49–A50; A366–A367). Based on these portions of the record, it is plain that counsel cross-examined Stagliano about the Miranda waiver form in furtherance of the defense strategy of portraying defendant as completely cooperative. Defendant’s remaining appellate arguments actually reinforce the conclusion that counsel’s purpose was to portray, in an incomplete or misleading manner, defendant as cooperative and willing to do everything that the police asked of him. According to defendant, Stagliano’s responses to counsel’s questions were not misleading because Stagliano testified that defendant “was cooperative” (Defendant’s Brief: 20) (emphasis in original). This argument misses the point entirely. First, Stagliano had little choice but to say that defendant was cooperative, as explaining any response to the contrary would have required him to reference defendant’s refusal to -34- answer questions, putting the entire trial in jeopardy. Second, whether defendant was “cooperative” in a general sense was not the issue. To be sure, defendant did not resist the officers in a direct sense and was perfectly polite to them. But the defense went further, suggesting that defendant willingly acceded to the officers’ every request. That was plainly not true: he refused to answer questions. It goes without saying that defendant was under no obligation to answer questions at the precinct. However, defendant was not entitled to exploit his right to remain silent in order to present to the jury a false portrayal of his interaction with the police. Next, defendant contends that because there was purportedly no indication that the police wished to ask him questions, evidence of his silence was not “highly probative” and was therefore inadmissible (Defendant’s Brief: 21–23). But the officers advised defendant of his Miranda rights, and the current dispute is precisely about whether the jury could hear that defendant rebuffed the officers’ request to interview him. There is certainly no basis for defendant’s speculation that the officers really had no intent to question him even though they went through the trouble of administering the Miranda warnings and asking if he would speak to them. Moreover, it would have made sense for the police to question defendant at the precinct about how he managed to drive his car onto a boulder, as well as the extent of his alcohol consumption, to determine if his version of events was consistent with the account he gave officers on the scene of the accident. -35- In the end, though, whether or not the officers actually wished to question defendant at that time is beside the point. Defendant tried to create the impression that he was willing to do everything asked of him by the police. Defendant’s refusal to answer questions showed that was not the case, regardless of whether the officers then would have gone on to question defendant if he had elected to waive his Miranda rights. By the same token, even if it were true that counsel did not imply that defendant had in fact “spoken with the police at the station” (Defendant’s Brief: 22), it would not matter. It was enough for defendant’s purposes that he created the impression that he was willing to speak to them. In any event, counsel’s cross- examination and argument created at least a serious risk that the jury would think that defendant had talked to the officers. Counsel not only elicited testimony that defendant was “cooperative at the precinct,” he also had Stagliano confirm that defendant had signed the Miranda waiver form. Upon hearing that evidence, it would have been entirely reasonable for the jurors to conclude that defendant had agreed to do everything asked of him by the police, including answering questions. This was the “false impression that required correction” (Defendant’s Brief: 21). For the same reasons, defendant is also incorrect to claim that counsel’s cross- examination did not leave the narrative incomplete (Defendant’s Brief: 23). Before the redirect examination, the jury would not have known that defendant’s “cooperation” did not include answering questions, and it would have been unaware -36- that defendant signed the Miranda waiver form but also refused to be questioned by the police at the stationhouse. In short, the trial court was well within its discretion to find that defendant opened the door to evidence that he refused to answer questions. But even if there had been any error in the court’s admission of the fleeting reference to defendant’s post-arrest silence, that error would have been harmless. See People v. Guay, 18 N.Y.3d 16, 24 (2011); People v. Crimmins, 36 N.Y.2d 230, 241–42 (1975). As already detailed, the court gave a curative instruction drafted by defense counsel, and the People never ever mentioned the brief passage in question again. Thus, any conceivable prejudice was minimal. Moreover, the People’s proof left little doubt that defendant was guilty of the crimes of which he was convicted. To establish that defendant was guilty of Driving While Intoxicated (VTL § 1192[2]), the People had to prove beyond a reasonable doubt that, while he was driving, defendant had “0.08 of one percentum or more by weight of alcohol” in his blood as shown by a chemical analysis of his breath, blood or urine. The trial evidence more than amply established these elements. First, defendant told the officers who responded to the scene of the accident that he had been driving the car that ended up damaged and resting on top of a boulder (A56, A59–A61). In addition, the Intoxilyzer 5000 machine measured defendant’s blood alcohol content at 0.10 (A209–A212)—well over the legal limit of 0.08. From the -37- witnesses’ testimony and the video recording, it was clear that the police correctly administered that breath test (A141–A158, A200–A213; People’s Exhibit 3). The evidence underlying defendant’s conviction for Driving While Ability Impaired (VTL § 1192[1]), was equally persuasive. To convict defendant of that crime, the People had to prove beyond a reasonable doubt that defendant was driving while his ability to do so was impaired by his consumption of alcohol. It was undisputed that defendant had been drinking on the night of his arrest, and Officer Stagliano noticed alcohol on defendant’s breath and recovered a half-full bottle of beer from inside defendant’s car (A56, A62–A64). Whether or not the jury accepted defendant’s claim that an unidentified taxi caused the accident, Dr. Stajic testified that anyone with defendant’s blood alcohol content of 0.10 could not safely drive a car (A296, A298–A299). Notably, defendant was in the “post-absorptive” stage at the time he took the test, meaning that his blood alcohol level was likely higher than that when he was driving the car (A299–A300). Additional evidence proved defendant’s impairment. Defendant failed the finger-to-nose coordination test at the precinct, and Stagliano noticed that defendant was slurring his speech, was unsteady on his feet, and had alcohol on his breath (A60, A214–A215, A242–A243; People’s Exhibit 3). To be sure, as defendant stresses, he performed adequately on two other coordination tests, but that only suggests that the jury might have given him the benefit of the doubt by acquitting him of Driving While Intoxicated and instead convicted him of the lesser crime of Driving While Ability Impaired. -38- Of course, while conceding that he had been driving the car, defendant claimed on the scene that he had swerved to avoid a taxi (A60). Defendant theorizes that the jurors discredited his explanation for the accident because he refused to repeat it at the police station, thereby leading them to infer that it was not true (Defendant’s Brief: 23–24). But it was the People’s position that it did not matter who was to blame for the accident. Instead, as the People pointed out during summation (A372), the critical point to be taken from defendant’s statement was that defendant was the driver at the time of the accident. And, as explained above, the jurors had more than ample reason to conclude that defendant was impaired. There was certainly no significant probability that the jury would have acquitted defendant on this count if it had not heard that defendant refused to answer questions. Defendant suggests that he had worthwhile arguments regarding the validity of the Intoxilyzer results that the jury chose to ignore once it heard that he had invoked his Fifth Amendment rights (Defendant’s Brief: 24). In fact, defendant’s arguments were without evidentiary support. Defendant stresses that the results could have been thrown off if he had burped (id.), but none of the witnesses testified that defendant burped before taking the test. Indeed, Stagliano watched defendant on the ride to the precinct and for half an hour before the test and did not see him burp, and the video footage of the test’s administration does not show defendant burping (A78–A80; People’s Exhibit 3). Further, all the witnesses agreed that the breath test was done properly on a duly calibrated machine. It is of no moment that the partition ratio was -39- “not universally applicable” (Defendant’s Brief: 24). Dr. Stajic’s testimony made clear that, even if defendant’s partition ration had been the same as the lowest value in the population, it would not have mattered because his blood alcohol content would still have been over the legal limit. Finally, in arguing that his performance on the coordination tests called into doubt the accuracy of the Intoxilyzer, defendant neglects to mention that he failed the hand-to-nose test. * * * In sum, the trial court appropriately exercised its discretion by ruling that defense counsel’s cross-examination opened the door to limited evidence that defendant refused to answer questions at the precinct.