The People, Respondent,v.Derrick Hill, Appellant.BriefN.Y.October 16, 2014To be argued by Jonathan Garelick (10 minutes) COURT OF APPEALS State of New York THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- DERRICK lllLL, APL-2013-00177 Defendant-Appellant. BRIEF FOR DEFENDANT-APPELLANT STEVEN BANKS THE LEGAL AID SOCIETY Criminal Appeals Bureau 199 Water Street, 5th Floor New York, New York 10038 (212) 577-3607 Attorneyfor Defendant-Appellant JONATHAN GARELICK Of Counsel November 18,2013 TABLE OF CONTENTS PRELIMINARY STATEMENT 1 QUESTION PRESENTED 2 STATEMENT OF FACTS 2 Summary ofEvidence and Issue Presented 2 Defense Theory at Trial . . . . . . . . . . . . . .. . 5 Trial Evidence. .. . . .... .... .. 6 Colloquy on Admission of Evidence of Post-Arrest Silence 8 Balance 0 fTrial Evidence , 10 Charge 12 Verdict and Sentence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .13 Appellate Division's Decision 13 ARGUMENT COUNSEL DID NOT OPEN THE DOOR TO EVIDENCE OF PRE-TRIAL SILENCE MERELY BY ASKING A POLICE WITNESS WHETHER APPELLANT, CHARGED WITH DRIVING WHILE INTOXICATED, RESPONDED APPROPRIATELY WHEN READ HIS MIRANDA RIGHTS, WHERE COUNSEL SIMILARLY ASKED WHETHER APPELLANT WAS COOPERATIVE WHEN ADMINISTERED BREATHALYZER AND COORDINATION TESTS, AND WHERE THERE WAS NOTIllNG IN COUNSEL'S QUESTIONS THAT WAS MISLEADING OR FOR ANY OTHER REASON REQUIRED THE INTRODUCTION OF OTHERWISE INADMISSffiLE EVIDENCE. . 15 CONCLUSION 26 TABLE OF AUTHORITIES CASES People v. Abel, 298 NY.2d 333 (1949) .17 People v. Conyers , 52 N.Y.2d 454 (1981) Passim People v. Crimmins, 36 N.Y.2d 230 (1975) ; 23 People v. Davis, 58N.Y.2d 1102 (1983) 25 People v. Davis, 61 N.Y.2d 202 (1984) 18 People v. Dawson, 50 N.Y.2d 311 (1980) 16-17, 19 People v. DeGeorge, 73 N.Y.2d 614 (1989) 17 People v. Derrick Hill, 105 A.D.3d472 (l stDept. 2013) 1, 13-14 People v. Massie , 2N.Y.3d 179(2004) 19,21 People v. Melendez, 55 N.Y.2d 445 (1982) 19 People v. Reid, 19 N.Y.3d 382 (2012) 19-21 People v. Rothschild, 35 N.Y.2d 355 (1974) 18, 22 People v. Savage, 50 N.Y.2d 673 (1980) 18, 22 People v. Von Weme, 41 N.Y.2d 584 (1977) 16 STATUTES C.P.L. §470.05(2) 1 1 COURT OF APPEALS STATE OF NEW YORK --------------------------~------------------------------------------)( THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- DERRICK I-llLL, Defendant-Appellant. ---------------------------------------------------------------------)( PRELIMINARY STATEMENT By permission of the Honorable Victoria A. Graffeo, granted on July 1, 2013 (Appendix ["A"]-I), appellant Derrick Hill appeals from an Order and Opinion of the Appellate Division, First Department, entered on April 9, 2013. The Appellate Division affirmed a judgment of the Supreme Court, New York County, rendered March 13, 2010, convicting appellant, after trial, of driving while intoxicated [V.T.L. 1192(2)] and driving while ability impaired [V.T.L. 1192(1)] and sentencing him to a jail term of 60 days and five years of probation (Conviser, J. at trial and sentence). See People v. Derrick Hill, 105 A.D.3d 472 (1st Dept. 2013). On information and belief, appellant remains on probation pursuant to the sentence imposed in this case. He had no co- defendants below. The issue raised here presents a question of law within the meaning of C.P.L. §470.05(2). The issue was preserved for review by trial counsel's 1 objection to the introduction of evidence that appellant choose not to speak with the police after being read his Miranda warnings (A.25-27); the court's overruling of counsel's objection (A.27) and the court's stated basis for its ruling (A.32). QUESTION PRESENTED Whether counsel opened the door to evidence of pre-trial silence merely by asking a police witness whether appellant, charged with driving while intoxicated, responded appropriately when read his Miranda rights, where counsel similarly asked whether appellant was cooperative when administered breathalyzer and coordination tests, and where there was nothing in counsel's questions that was misleading or for any other reason required the introduction of otherwise inadmissible evidence. STAlEMENT OF FACTS Summary ofEvidence and Issue Presented Appellant Derrick Hill was arrested after the police found his vehicle on a meridian near on the corner of 23fd Street and Avenue C in Manhattan. At the scene, appellant explained to the police that he had to make a sharp turn after being cut off by a taxi, and lost control of the car as a result. The arresting officer smelled alcohol on appellant's breath and saw a half bottle of beer in the front console; appellant admitted having drunk one beer. A subsequent breathalyzer examination at the precinct showed that appellant had a blood alcohol level of .10 per cent. 2 Appellant was charged with a count of driving while intoxicated as charged under V.T.L. 1192(3), and a count of "per se" driving while intoxicated as charged under V.T.L. 1192(2)(driving with a blood alcohol level of .08 or higher). He was also charged with a count of driving while impaired as under V.T.L. 1192(1). With respect to the counts charging that appellant's driving ability was adversely effected by alcohol, the defense theory was that appellant's ability to provide a coherent and plausible explanation for the accident at the scene, his overall success at a coordination test administered at the precinct, and his level of cooperation and general demeanor all indicated that he was not meaningfully impaired. With respect to the count of "per se" intoxication, the defense theory was that the breathalyzer test was not sufficiently reliable to support a conviction, and that appellant's lack of actual impairment stood in contradiction to the results of the breathalyzer, creating reasonable doubt. On cross-examination of the arresting officer, counsel established that appellant was generally cooperative, that he took the breathalyzer and coordination tests when asked to do so, and that he responded appropriately and signed a form as requested when read his Miranda rights. The prosecutor then requested permission to introduce evidence on re-direct that when asked the final question on the Miranda form - whether he wished to speak with the 3 police, having been advised of his rights - appellant answered, "No." The prosecutor argued that defense counsel had opened to the door to this evidence "by even bringing up the Miranda card." Counsel objected and argued that his questioning was merely intended to demonstrate that when the officer asked appellant to sign the Miranda card, he "cooperated, he did what he was asked to do." The court overruled counsel's objection and permitted the prosecutor to introduce evidence that appellant declined to answer questions after being advised of his rights. The court explained stated that it was permitting this evidence "to indicate the defendant's condition at the time that ...the officer was talking to him and to provide a full narrative of what was happening." The court instructed the prosecutor not to make any argument that the jury could infer guilt from appellant's exercise of his right to silence, and at the defense's request, gave an instruction in the final charge that the evidence could not be used for that purpose. The jury acquitted appellant of the count of driving while intoxicated as charged under V.T.L. 1192(3), but found him guilty on the count of "per se" driving while intoxicated under V.T.L. 1192(2), and driving while impaired under V.T.L. 1192(1). 4 Defense Theory at Trial The defense theory at trial, as presented in counsel's opening statement (A.5-11), was that the evidence showed that appellant display a level of impairment consistent with the charged offenses. Counsel argued that appellant had performed well on much of the coordination test administered in the precinct (A.5-7). Counsel also noted that appellant offered an explanation for the accident at the scene that was "credible" and "reasonable" and not the kind of account someone who is intoxicated would make up" (A.8). With respect to the results of the breathalyzer test, counsel argued that the Intoxilyzer 5000 was not sufficiently reliable (A.6 ); that the prosecutor had to prove that the machine was so accurate that "it cannot be possible for it to be off by point zero two percent" (A.9); and that the results could have been effected by "dust in the room" or "a burp" (A.10). Counsel further argued that, given appellant's overall performance on the coordination tests, "the District Attorney is essentially going to be introducing conflicting pieces of evidence. One shows that he is guilty and one shows Mr. Hill is innocent. That's reasonable doubt" (A.8). Counsel urged that that a blood sample would have provided more definitive evidence, and argued: "They could have taken, they could have requested that he provide a sample of his blood. He was cooperative. You are 5 going to hear that from the testimony of the officers here today. You are going to see that for yourself in the video. He did everything that they asked him to do. He was polite. He was cooperative. He did everything that they asked him and needing a sample of blood, they never requested a sample of blood" (A.!0- 11). Trial Evidence When Officer Stagliano1 responded to a report of a car accident on the corner of 23rd Street and Avenue C in Manhattan, he saw appellant Derrick Hill's vehicle on top of a boulder in themeridian (A.12). Stagliano asked appellant what happened, and appellant explained that he was "coming down Avenue C towards the light, he was cut off by an unknown cabby. He swerved to the left to get out of the way which caused his vehicle to go to the left on top of the boulder" (A.12). Stagliano smelled a "moderate odor" of alcohol on appellant's breath, and, in response to Stagliano inquiry, appellant admitted to having had one beer before driving (A.12). Stagliano observed a half-full bottle of beer on the center console of the vehicle. Appellant's eyes appeared bloodshot and watery, and he seemed to be "swaying" on his feet (A.14). However, appellant had no trouble walking (A.15-16). Similarly, his speech was slightly slurred, but 1 The transcript provided only the last name of the police witnesses. 6 Stagliano had no trouble understanding him (A.14). Stagliano testified that appellant was "a little agitated from being in an accident, but otherwise polite to me" (A.I5). Appellant arrived at the 7th Precinct at about 1:45 a.m. and remained in a cell for about a half an hour (A.I8). At about 2:20 a.m., appellant's breath was tested by an Intoxilyzer 5000 machine to determine his blood alcohol level (A.I9). On cross-examination, counsel asked Stagliano if the account that appellant gave at the scene made sense given the layout of the road (A.20). Stagliano testified that there was in fact a bend in the road at that point, and that appellant gave a "somewhat detailed" account at the scene that made sense based on the layout of the street (A.20). Stagliano likewise testified, in response to counsel's questions, that appellant was polite and cooperative, that he was not antagonistic, that he was face was not flushed, and that his clothes were orderly (A.22-23, A.25). Counsel and Stagliano then had the following exchange: Counsel: When you got to the precinct you read him his rights? Stagliano: Yes. Counsel: You gave him a form asking him ifhe understood these rights? 7 Stagliano: Yes. Counsel: He read the form? Stagliano: I read the form to him, I read each part out [loud], 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 (A.25). Counsel further asked whether appellant took the breathalyzer and the coordination tests as requested, and whether he was cooperative in general at the precinct (A.25). Stagliano again responded affirmatively (A.25). Colloquy on Admission ofEvidence ofPost-Arrest Silence After counsel's cross-examination of Stagliano, the prosecutor sought permission to introduce evidence that, after the police read appellant his Miranda rights, appellant declined to answer any further questions (A.27). The prosecutor argued, "Defense counsel in my view just opened the door on Miranda. His argument here is the defendant was cooperative, he just asked him if he would ask him any questions, asked him Miranda, was the defendant cooperative. In fact of the defendant refused to answer questions, when he went through all the questions he said yes or no, the last question he refused to answer the question. In this case he opened the door by even bringing up the Miranda card" (A.26-27). 8 Counsel protested, "I didn't ask him if he ever refused to answer any questions. I said when you asked him to sign Miranda he did, he cooperated, he did what he was asked to do" (A.27). The court then ruled, "I think you opened the door to that, that one question, did he ask, did he then answer any questions" (A.27). On re-direct, the prosecutor questioned Stagliano: Prosecutor: You read the defendant his Miranda rights? Stagliano: Yes, I did. Prosecutor: At the end ofthose rights did you ask the defendant whether he was willing to answer any questions? Stagliano: Yes. Prosecutor: What was his response to that? Stagliano: No (A.28). After re-direct, the court explained his ruling: "I want to go back to the fact that I had allowed evidence to be introduced that the defendant had not answered questions after he had been issued Miranda warnings. The reason I did that was because in my view as I said at side bar, the defense opened the door to that issue by their questioning of the witness regarding the administration of the Miranda warnings and I think that the evidence was, I allowed the evidence to come in just to indicate the defendant's condition at the 9 time that he was, at the time the officer was talking to him and to provide a full narrative ofwhat was happening" (A.32). The court continued, "I don't want there to be any implication in the jurors' mind that because the defendant didn't answer questions that can be held against him" (A.32). The court prohibited the prosecutor from making any argument to that effect on summation (A.32). The court also offered to give an instruction that appellant's refusal to answer questions was not a factor from which the jury could infer guilt, but added, "I don't think it's necessarily beneficial to give the jury an instruction" (A.32-33). Counsel responded, "Your Honor, maybe in the closing instruction" (A.33). Balance of Trial Evidence Detective Coleen Schutt testified that as part of her duties, she inspected, maintained, and calibrated each of twelve Intoxilyzer 5000 units in use throughout the city (A.29-30). A pre-prepared solution with .1 percent alcohol is used to determine if the device is functioning correctly; a properly operating Intoxilyzer would return a reading of between .09 and .11 percent after testing that solution (A.3I). When that pre-prepared solution was field tested on the machine used in this case, it twice produced readings of .099, the produced a reading of .098 (A.35). A second machine in the same room was tested with the same solution, and returned readings of .104 and .103 (A.35-36). This level 10 of variance was deemed acceptable by the police department and the New York State of Board of Health (A.35-37). To determine an individual's blood alcohol level, it was necessary to convert the results of the breath alcohol level as determined by the Intoxilyzer, using what is known as a "partition ratio" (A.38). Detective Schutt testified the machine converted the breath alcohol level to blood alcohol level test using a "partition ratio" of 2100 to 1 (A.38). She further testified that this ratio was not precisely accurate for all persons, and was closer to 1800 to 1 for the general population (A.39)? Marina Stajic, a forensic toxicologist, then testified instead that the 2100 to 1 ratio used to convert breath alcohol level to blood alcohol level would apply to the average person, while conceding that "the ratio is not constant, it varies among different individuals and it can even vary with the same individual. It doesn't always have to be 2100" (A.51-52). According to Stajic, studies have shown individual ratios ranging from 1800 to 1 to 2400 to 1 (A.52). Stajic testified that a 2100 to 1 ratio would produce a correct result for the vast majority of persons (A.53). 2 At the conclusion of the witness 's testimony, the prosecutor told the court that Detective Schutt had testified incorrectly with respect to the average breath to blood ratio for the general population, and the court granted the prosecutor permission to have a second witness correct that information (A.40-41). 11 Officer Almanzar was the breath analysis operator who administered the Intoxilyzer test to Mr. Hill on May 9, 2009 (A.41-42). Almanzar instructed another officer to observe Mr. Hill for twenty minutes before the test; Almanzar explained that if a subject vomits, chews gum, eats, drinks or even burps during the twenty minutes before the test, this can interfere with the results (A.42). The test showed that Mr. Hill had a blood alcohol content of .10, i.e., higher than the .08 legal limit (A.45). After administering the Intoxilyzer test, Almanzar asked appellant to take a series of coordination tests (A.46). He stated that at one point, Mr. Hill "wasn't listening", and that "[wjhen I tell him with the finger to the nose test, when I said the right he took the left. And when I said the left he took the right" (A.47-48). But on every one of the other six coordination tests, Almanzar gave appellant the best possible grade (A.49-S0). Charge The court submitted both counts of driving while intoxicated, as well as the count of driving while impaired (A.56-58 ). On defense counsel's request, the court included the following instruction: "On the People's re-direct examination of Officer Stagliano in this case, the District Attorney asked Officer Stagliano about Mr. Hill's answer to the last question detailing his Miranda rights. That is his right to remain silent and his right to an attorney. 12 Specifically, the District Attorney asked Officer Stagliano what Mr. Hill wrote next to the question about whether he would be willing to answer any additional questions. Officer Stagliano answered that Mr. Hill answered no. Under the law, Mr. Hill is not required to answer any questions by the police. The jury is not permitted to draw a negative inference from the fact that Mr. Hill exercised that right" (A.54-55). Verdict and Sentence The jury found appellant guilty on the count of driving while intoxicated based on a blood alcohol level of .08 or higher (A.59). It acquitted on the second count of driving while intoxicated but convicted on the lesser count of driving while impaired (A.59-60). The court imposed a sentence of 60 days in jail and five years of probation (A.61). Appellate Division Decision Appellant appealed to the Appellate Division, First Department, arguing that the admission of evidence of pre-trial silence deprived him of a fair trial. On April 9, 2013, the Appellate Division, First Department affirmed the judgment of conviction. See People v. Derrick Hill, 105 A.D.3d 472 (1st Dept. 2013). The Appellate Division stated: "The court properly exercised its discretion in determining that defendant's cross examination opened the door to limited testimony that defendant declined to make a statement to the arresting 13 officer. Defendant pursued a line of questioning that created misleading impressions about his post arrest interactions with the police. Furthermore, any potential prejudice was prevented by the court's thorough instruction, which defense counsel drafted, and which the jury is presumed to have followed. In any event, any error in receiving the challenged testimony was harmless." Id. at 472 (citations omitted). 14 ARGUMENT COUNSEL DID NOT OPEN THE DOOR TO EVIDENCE OF PRE-TRIAL SILENCE MERELY BY ASKING A POLICE WITNESS WHETHER APPELLANT, CHARGED WITH DRIVING WlllLE INTOXICATED, RESPONDED APPROPRIATELY WHEN READ IDS MIRANDA RIGHTS, WHERE COUNSEL SIMILARLY ASKED WHETHER APPELLANT WAS COOPERATIVE WHEN ADMINISTERED BREATHALYZER AND COORDINATION TESTS, AND WHERE THERE WAS NOTHING IN COUNSEL'S QUESTIONS THAT WAS MISLEADING OR FOR ANY OTHER REASON REQUIRED THE INTRODUCTION OF OTHERWISE INADMISSmLE EVIDENCE. Defense counsel focused the jury's attention on evidence that tended to show that appellant was, in fact, not significantly affected by his consumption of alcohol. This included evidence that appellant provided a plausible and fairly detailed explanation for the accident at the scene; that appellant successfully completed four of five coordination tests with the best possible rating, "steady"; and that appellant was cooperative when the police administered the breathalyzer and coordination tests. Consistent with this theme, counsel also established on cross-examination of the arresting officer that appellant responded appropriately when read his Miranda rights and signed the Miranda form as requested after being informed ofhis rights. Contrary to the trial court's ruling, none of this opened the door to evidence that, when asked the final question on the Miranda form - whether he wished to answer questions, having been advised of his rights - appellant elected to remain silent. Counsel's questions were in no way misleading; 15 according to the arresting officer, appellant was cooperative. And counsel never implied that appellant tried to speak with the police or offer an alibi while at the police station, or in any other way made the question ofwhether appellant chose to remain silent an issue in this case. Where there was nothing misleading or incomplete about the testimony elicited by the defense, there was no basis for permitting otherwise evidence of appellant's pre-trial silence. And in event, appellant's mere exercise of the right to remain silent did not demonstrate that, contrary to the arresting officer's own testimony on cross-examination, appellant was in fact uncooperative on his arrest. Accordingly, the court erred in permitting that evidence of appellant's pre-trial silence. Under the circumstances of the case, that error requires that the judgments of conviction be reversed, and a new trial ordered. Analysis begins with the principle that a defendant's pre-trial silence is, as a matter of long-standing evidentiary law, presumptively inadmissible. People v. Conyers, 52 N.Y.2d 454 (1981). Indeed, such evidence has been held inadmissible for any reason as part of the prosecutor's case-in-chief. See People v. Dawson, 50 N.Y.2d 311,319 (1980)(New York has adopted rule that "entirely precluded" use of a defendant's silence in custody as evidence in chief); People v. Von Weme, 41 N.Y.2d 584 (1977)(defendanfs refusal to 16 speak inadmissible on direct case); People v. Abel, 298 NY.2d 333 (1949)(same). And, as this Court held in Conyers, evidence of pre-trial silence is inadmissible even for impeachment purposes except in "unusual circumstances." See 52 N.Y. at 458; see also People v. DeGeorge, 73 N.Y.2d 614 (1989)(evidence of a defendant's silence admitted to impeach must have "unusually high probative value"). This Court's disinclination to permit evidence of a defendant's pre-trial silence is based on a long-held view that "[i]t is neither natural or expected that a defendant in custody would want to speak with his captors, and therefore, such silence has little or no probative value." Dawson, 50 N.Y.2d at 320, citing People v. Rutigliano, 261 N.Y. 103 (1933)("No cautious person, when in custody, accused of a crime, would care to enter into a discussion ofhis guilt or innocence with his captors and co-defendants, when what he said might be used against him"). "[Ajn individual's pretrial failure to speak when confronted by law enforcement officials is of extremely limited probative worth," since "the individual's silence in such circumstances may simply be attributable to his awareness that he is under no obligation to speak or to the natural caution that arises from his knowledge that "the individual may refrain from speaking 17 because he believes that efforts to exonerate himself under the circumstances would be futile." Conyers, 52 N.Y.2d at 458. But while evidence of pre-trial silence has very limited probative value, there is a "grave danger of prejudice" from the improper admission of this evidence of pre-trial silence. Id. at 458, n. 2. This danger arises from the fact that the average juror would not necessarily understand the non-inculpatory reasons a person might exercise his right to remain silent, and accordingly, "evidence of a defendant's silence may have a disproportionate impact on the minds of the jurors," despite the "marginal probative worth" of such evidence. rd. at 458-459. Conyers did not create a per se rule banning the use ofpre-trial silence to impeach, see People v. Davis, 61 N.Y.2d 202 (1984), but did limit its use to "unusual circumstances." Thus, evidence of pre-trial silence is admissible where a defendant falsely claims at trial that he was allowed the explain an incident, or where the defendant has some special obligation to speak with the police that made such silence unusually probative, see People v. Rothschild, 35 N.Y.2d 355 (l974)(defendant police officer's silence admissible where he had duty to report information); or where a defendant gave a statement to the police but was silent as to an exculpatory detail included in his trial testimony, see People v. Savage, 50 N.Y.2d 673 (1980). But absent such circumstances, 18 evidence of pre-trial silence remams inadmissible even to impeach, and IS inadmissible on the People's case-in-chieffor any purpose. To be sure, otherwise impermissible evidence may be rendered admissible where the defense "opens the door" to that evidence. See People v. Reid, 19 N.Y.3d 382 (2012)(Possible for defendant to open door to evidence that would otherwise be inadmissible under the Confrontation Clause of the United States Constitution); but see Dawson, 50 N.Y.2d at 319 (New York rule "entirely preclude[s]" use of defendant's silence in custody as evidence in chief). But even assuming that it is possible for the defense to open the door to admission of evidence of pre-trial silence, the lower court erred that the door was opened in this case. "By simply broaching a new issue on cross-examination, a party does not thereby run the risk that all evidence, no matter how remote or tangential to the subject matter opened up, will be brought out on re-direct." People v. Melendez, 55 N.Y.2d 445, 342 (1982). Before admitting evidence on an "opening the door" theory, a trial court must consider "whether, and to what extent, the evidence or argument said to open the door is incomplete or misleading, and what, if any otherwise inadmissible evidence is reasonably necessary to correct the misleading impression." People v. Massie, 2 N.Y.3d 179, 184 (2004). 19 In this case, there was nothing incomplete or misleading about the questions posed by counsel on cross-examination of the arresting officer, and accordingly, that cross-examination failed the threshold test for opening the door to inadmissible evidence. First, to the extent that the defense put appellant's cooperativeness in issue, counsel's questions did not create false impression; to the contrary, according to the arresting officer, appellant was cooperative. This is case IS thus easily distinguishable from those in which the defense, through counsel's arguments or the defendant's testimony, actually presented an untrue or misleading version of the facts. For example, in Reig, the defense falsely implied that the police had evidence that a prosecution witness was involved in a shooting, and accused the police of doing a shoddy job on the case but not following up on that evidence. The misleading impression created by the defense opened the door to hearsay evidence that the police had information that the witness was not involved. See Reid, 19 N.Y.3d at 387-389. Similarly, where the defense introduced evidence suggesting that a witness could not identify the defendant without being helped or coached, the door was opened to precluded evidence that the witness had selected the 20 defendant from a lineup without being assisted or cued in any fashion. See Massie, 2 N.Y.3d at 184-185. Nothing analogous occurred in this case. Instead, as noted, the defense simply introduced accurate testimony from the prosecutor's own witness indicating that appellant was cooperative with the police. Unlike in Reid or Massie, there was no false impression that required correction with otherwise inadmissible evidence. Further, appellant's silence after being informed of his Miranda rights would only be admissible to rebut evidence of cooperativeness if appellant's mere exercise of his right to remain silent was highly probative evidence that, contrary to the purported misimpression created by the officer's testimony, appellant was in fact uncooperative with the police. But assigning this probative value to pre-trial silence is completely inconsistent with this Court's stated view that such evidence is presumptively lacking in probative value. See Conyers, 52 N.Y.2d at 458-459 ("evidence of a defendant's pre-trial silence must be regarded as having minimal probative significance and as having a correspondingly low potential for advancing the truth-finding process"; such evidence has "marginal probative worth"). And there were no unique circumstances In this case that made appellant's decision not to answer questions compelling evidence that appellant 21 was in fact uncooperative. Indeed, there was no indication that, when the police asked appellant if he wished to answer questions having been advised of his rights - the routine final question posed when advising a defendant of his Miranda rights -- the police even had any other questions for appellant. At that point, the police had already placed appellant under arrest and obtained the results of a breathalyzer test, and there appeared to be nothing else they needed of him. In short, it was entirely likely that the police only asked appellant if he was willing to answer questions because they asked that question - the last on the Miranda card - every time they gave Miranda warnings. Certainly, there was no indication that by simply answering "no," appellant did anything that the police considered remotely uncooperative or disruptive to their handling of this case. Nor were there any other special circumstances that made appellant's silence especially probative. Counsel never falsely implied that appellant had in fact spoken with the police at the station or that he had tried to provide an alibi or other inculpatory information after being advised of his Miranda rights. Appellant's silence was not specially probative because of some special obligation to speak with the police, as in Rothschild, and appellant did not give a statement while omitting the inculpatory details included in an account given at trial, as in Savage. 22 Given the actual requirements for "door opening," the prosecutor was clearly incorrect that appellant opened the door to inadmissible evidence ofpre- trial merely by "bringing up the Miranda card." The court's conclusion that the evidence was admissible to show appellant's "condition" and to give a full narrative fares no better. As argued, there was nothing misleading in counsel's questioning of the officer, and the "narrative" was in no way incomplete without reference to evidence of pre-trial silence. And appellant's mere decision not to answer questions was not sufficiently probative of appellant's "condition" - in terms of his cooperativeness, or for that matter, his drunkenness - to justify the introduction of the otherwise prohibited evidence. The court's ruling was not harmless on the facts of this case. See People v. Crimmins, 36 N.Y.2d 230 (1975). The jury's acquittal on the count charging "common law" driving while intoxicated demonstrated that it had questions about the prosecutor's proof in this case. Under the circumstances, it is possible that if the court had not erroneously admitted presumptively prejudicial evidence, the jury's verdict on the remaining counts would have been different. Further, prior to this arrest, appellant explained the circumstances of his car accident to the police, and as the arresting officer acknowledged, appellant's explanation - that he was cut off by a taxi and forced off the road to avoid a collision - was plausible given the layout of the road. Where appellant had 23 previously given this explanation but then refused to discuss the accident once in police custody, the jury could well have speculated, unfairly, that he declined to repeat the explanation because it was not really true. This in turn could have supported an inference that appellant actually got into the accident because his ability to drive was impaired - an inference that could have led to a guilty verdict on the count that charged driving while impaired. The court's error was also harmful with respect to the count based on the Intoxilyzer results. The defense theory on that count was that there were questions as to the reliability and accuracy of the examination. The jury heard evidence that the results could have be affected by a burp; learned that the ratio used to convert breath alcohol levels to the relevant blood levels was not universally applicable; and heard conflicting testimony from the prosecutor's own witnesses as to the applicability of that ratio to the average person. Further, defense counsel argued that appellant's overall success on the coordination tests stood in contrast to his purported alcohol level, casting further doubts on the accuracy of the Intoxilyzer results. But given the suspicions potentially raised by appellant's refusal to speak with the police, it is too likely that the jury concluded that any issues as to the validity of the test results were simply not worth considering. 24 Although the court issued a curative instruction on counsel's request, and juries are presumed to follow such instructions, see People v. Davis, 58 N.Y.2d 1102 (1983), that presumption was insufficient on the facts of this case to ensure that the error was harmless. The court itself acknowledged, when it offered a curative after permitting the relevant testimony, that it was unclear whether such an instruction would actually be beneficial to the defense. And while counsel ultimately opted to have a curative included in the final instructions, it remains that the defense was compelled to choose between the risk that the jury would believe, in the absence of instructions, that it could use the evidence of silence to infer guilt, and the risk that by including the curative, the jury's attention would once again to the fact that appellant refused to answer question once in police custody. Moreover, where the evidence of silence was not admitted for any proper purpose, it was not possible for counsel to propose instructions that contained any meaningful guidance as how to the jury should use the evidence. And as this Court has observed, the unjustified admission of evidence of pre-trial silence carries with it a "grave danger of prejudice" because of the potentially "disproportionate impact upon the minds of the jurors" of such evidence. See Conyers, 52 N.Y.2d at 458,458 n. 2. Under the circumstances, the judgments of conviction should be reversed, and a new trial ordered. 25 CONCLUSION FOR THE REASONS STATED, THE JUDGMENTS OF CONVICTION SHOULD BE REVERSED, AND A NEW TRIAL ORDERED. Respectfully submitted, ,./ r .' L-._~._.._-_. .. JONATHAN GARELICK STEVEN BANKS Attorneys for Defendant-Respondent 199 Water Street 5th Floor New York, New York 10038 212-577-3307 igarelick@legal-aid.org November 18,2013 26