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Impeachment Through Omission

Impeachment Through Omission

People v. Chery

New York Court of Appeals

?26 NY Slip Op 07109

Decided on November 1, 2016


Issue: Whether it was erroneous to allow the People to use a defendant’s selective silence, while making a spontaneous post-detention statement to the police, to impeach his trial testimony.


Holding: The Court of Appeals held that, when defendant omitted certain fsilenceacts in his initial statement to police and then later testified to those additional facts at trial, impeachment through cross-examination was permissible in order to challenge the credibility of the defendant’s trial testimony compared to the events that had transpired at the scene due to the defendants selective silence.


Facts: A defendant attacked an employee in a small grocery store and robbed the complainant of $215.00. Two witnesses observed the exchange between the defendant and the complainant. The responding officer observed a sharp metal object in the defendants hand and a long wooden board on the sidewalk, as well as injuries on the complainant. Both men were arrested, but after speaking to the witnesses and complainant, only the defendant was arrested. The officer found $215.00 on the defendants person. At the scene of the arrest, the defendant told the police that complainant was “kicking my bike and he should go to jail too.”


During his testimony, the defendant claimed that he saw the complainant chasing two teenage girls from the store and that he was cursing at them for trying to steal. The defendant said he confronted the complainant about the altercation with the two girls, and the complainant began kicking the defendant’s bike, and defendant further testified that the complainant hit the defendant over the head with a piece of wood. The defendant claimed to have told the responding officer that the complainant “was kicking my bike, and then we got into a fight, and if he come at me with the wood, thats not my wood, thats his wood.”



The prosecutor asked the trial court for permission to impeach the defendant on cross-examination on the grounds that the defendant omitted the fact that he was hit with a wooden board. The trial court granted the application. It should be noted that the statements used for impeachment were not of constitutional dimension because they were not the product of police interrogation, but were made spontaneously.


The defendant was convicted of robbery in the first degree and two counts of robbery in the second degree.


Legal Analysis: The general rule when a defendant remains silent post-detention is that silence cannot be used against him at trial. However, the New York Court of Appeals in 1980, in the case of People v. Savage, held that there is a narrow exception to that rule. The Court of Appeals held that “when given circumstances make it court-room-judge-verdict-scales-of-justice1most unnatural to omit certain information from a statement, the fact of the omission is itself admissible for purposes of impeachment” (50 NY2d 673 [1980]). In the instant case, the People invoked the Savage rule, and the Court of Appeals agreed.


Although some facts in Savage are distinct from the case at bar, such as the issuance of Miranda rights, the Savage rule still applies to the instant case given that, under the circumstances, the defendant’s silence was unnatural. The mere fact that the defendant chose to detail what happened at the scene made it unnatural to omit events (i.e. that the complainant assaulted the defendant with a wooden board) that may have, otherwise, influenced the officer to arrest the complainant instead of the defendant.


Defendant’s conspicuous omission of the exculpatory facts in his spontaneous statement to police tended to show that his trial testimony was a recent fabrication. Therefore, the omitted statements could be used on cross-examination to impeach.

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