People v. Graziosa

ROBERT M. STOLZ, J. The defendant was convicted of assault in the third degree (Penal Law § 120.00 [1]) following a jury trial. He now moves Indeed, it is far from clear that Basora rests on Fifth Amendment constitutional grounds, as opposed to New York State evidentiary rules. Thus, Basora cites, inter alia, People v Conyers (52 NY2d 454 [1981] [Conyers II]). In that case, which followed upon the Supreme Court's ruling in Jenkins v Anderson (447 US 231 [1980]), the Court of Appeals precluded the use of a defendant's pretrial silence for impeachment purposes under New York State evidentiary law. The Conyers II Court explicitly stated that its decision did not rest upon either state or federal constitutional considerations. Subsequently, in People v De George (73 NY2d 614 [1989]), the Court of Appeals reiterated that such use of a defendant's pretrial silence is governed by "our common-law rules of evidence." (People v De George, supra, 73 NY2d at 618.) Similarly, the subsequent history of Basora in federal court makes it clear that no Fifth Amendment issue was presented by the defendant's postarrest smile because it was not "compelled" within the meaning of the Fifth Amendment. (See Basora v Mitchell, 803 F Supp 897, 898 [SD NY 1992] ["The Fifth Amendment privilege protects one from being `compelled' to be a witness against one's self in a criminal case. With respect to the smile at the time of arrest, it is hard to discern how petitioner could have been `compelled' to make that communication"].) This is, of course, consistent with the long-standing constitutional rule that the Fifth Amendment only protects against testimony which is the product of compulsion. (Fisher v United States, 425 US 391 [1976]; Doe v United States, 487 US 201 [1988]; People v Latham, 90 NY2d 795 [1997].) Clearly, in this case no compulsion of any kind precipitated defendant's smiles either before or after he was arrested. In any event, this objection was not preserved, and even were it reviewable, it was harmless beyond a reasonable doubt. (See People v Harris, supra, 98 NY2d at 492; People v Basora, supra, 75 NY2d at 994; People v Baily, 216 AD2d 1, 2 [1st Dept 1995].) In sum, under the facts of this case, the testimony regarding the defendant's demeanor was properly admitted under state evidentiary rules. Even if it were error to have admitted this testimony, such error was harmless beyond a reasonable doubt. Furthermore, any constitutional claim is unpreserved, harmless and, in any event, without merit. The defendant's motion to set aside the verdict pursuant to Criminal Procedure Law § 330.30 is hereby denied. [*] For this additional reason, even if made, defense counsel's somewhat cryptic reference to "Doyle error" would not have apprised the court of the claim he now makes, and therefore would not be preserved.