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(Harmless) Error for Prosecutor to Ask If Other Witnesses’ Testimony Was Untrue and to Ask About Defendant’s Silence Upon Apprehension

The Second Department noted that it was error for the prosecutor to ask defendant on cross-examination whether testimony which contradicted defendant’s was untrue, and to ask about his silence after he was apprehended. The errors were deemed harmless, however:

The defendant correctly contends that the prosecutor improperly asked him on cross-examination whether a prosecution witness’s testimony was “not true” because it contradicted the defendant’s recollection of events… . We also agree with the defendant that the prosecutor improperly cross-examined him about his silence when he was apprehended by the police …. However, under the facts of this case, the errors were harmless and did not deprive the defendant of a fair trial … . Indeed, with respect to the questions concerning the defendant’s silence after being apprehended, the trial court alleviated any prejudice by sustaining defense counsel’s objections to the two offending questions, striking the second question and answer from the record, and directing the jury to disregard the second question and answer. People v Cosme, 2013 NY Slip Op 07057, 2nd Dept 10-30-13

 

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