Opinion
April 26, 1990
Appeal from the Supreme Court, New York County (Edwin Torres, J.).
Defendant, using a .357 magnum, fired two shots at two civilian witnesses and one shot at a police officer on a public street. At trial defendant testified that he fired the gun in the air to frighten away four men who had robbed him and were following him. On cross-examination the prosecutor asked defendant whether he had told the police his version of what happened when he was arrested. On summation, the prosecutor referred to defendant's story as "outlandish", in part because he never told the police he was a crime victim.
The court erred in permitting defendant's postarrest silence to be used to impeach his credibility. (People v. Pavao, 59 N.Y.2d 282, 292.) An individual's pretrial silence is of extremely limited probative use (People v. Conyers, 52 N.Y.2d 454; People v Carter, 149 A.D.2d 83) since there are many reasons "attributable to a variety of innocent circumstances that are completely unrelated to the truth or falsity of his testimony" why a defendant may not come forward. (People v. Conyers, supra, at 458.) We find, however, any error in this regard to be harmless in view of the overwhelming evidence of guilt. (People v Crimmins, 36 N.Y.2d 230.) Four eyewitnesses observed defendant aiming his gun and firing at two civilians, as well as shooting at a uniformed police officer. When he was arrested he was in possession of the gun as well as eight live rounds of ammunition. Moreover, the prosecutor properly brought out that defendant had neither called out to passersby that someone was trying to rob him nor telephoned the police when he was allegedly being pursued by four men with a gun.
We do not find that the sentence imposed was unduly harsh or severe. Taking into account "among other things, the crime charged, the particular circumstances of the individual before the court and the purpose of a penal sanction", we perceive no abuse of discretion warranting a reduction in sentence. (People v Farrar, 52 N.Y.2d 302, 305.)
Concur — Sullivan, J.P., Ross, Ellerin, Wallach and Smith, JJ.