You are here: / / OKAY FOR THE JURY TO CONSIDER WHETHER DEFENDANT’S SILENCE AND EVASIVENESS...
,

OKAY FOR THE JURY TO CONSIDER WHETHER DEFENDANT’S SILENCE AND EVASIVENESS DURING A PHONE CALL WITH THE VICTIM RECORDED BY THE JAIL WAS AN ADOPTIVE ADMISSION.

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, over a two-judge dissent, determined the trial court did not abuse its discretion when it allowed in evidence as a potential adoptive admission a recorded phone call between the defendant and the victim. The phone call was recorded by the jail when defendant was incarcerated. Defendant’s silence and evasiveness when the victim told him he had broken her ribs was the essence of the potential adoptive admission. The jury was instructed that defendant’s silence and evasiveness could be considered by them, but it was up to them to determine whether the silence and evasiveness was an admission:

Here, it is clear that the trial court did not abuse its discretion as a matter of law when it made the threshold determination that defendant heard and understood the victim’s accusations against him. The court properly concluded that the content of the conversation, itself, demonstrates that defendant both heard and understood what she was saying, but chose to give evasive and manipulative responses. This view is supported by the context of the call, where, in a domestic violence case, defendant voluntarily contacted the victim in violation of an order of protection in an attempt to influence her to drop the charges against him. Once this foundation was established, it was proper for the call “to be placed before the jury so that the jury might weigh the import, along with its other instructions and responsibilities” … . People v Vining, 2017 NY Slip Op 01144, CtApp 2-14-17

CRIMINAL LAW (OKAY FOR THE JURY TO CONSIDER WHETHER DEFENDANT’S SILENCE AND EVASIVENESS DURING A PHONE CALL WITH THE VICTIM RECORDED BY THE JAIL WAS AN ADOPTIVE ADMISSION)/EVIDENCE (CRIMINAL LAW, OKAY FOR THE JURY TO CONSIDER WHETHER DEFENDANT’S SILENCE AND EVASIVENESS DURING A PHONE CALL WITH THE VICTIM RECORDED BY THE JAIL WAS AN ADOPTIVE ADMISSION)/ADOPTIVE ADMISSION (CRIMINAL LAW, EVIDENCE, OKAY FOR THE JURY TO CONSIDER WHETHER DEFENDANT’S SILENCE AND EVASIVENESS DURING A PHONE CALL WITH THE VICTIM RECORDED BY THE JAIL WAS AN ADOPTIVE ADMISSION)/ADMISSION (CRIMINAL LAW, EVIDENCE, OKAY FOR THE JURY TO CONSIDER WHETHER DEFENDANT’S SILENCE AND EVASIVENESS DURING A PHONE CALL WITH THE VICTIM RECORDED BY THE JAIL WAS AN ADOPTIVE ADMISSION)/SILENCE (CRIMINAL LAW, ADOPTIVE ADMISSION, OKAY FOR THE JURY TO CONSIDER WHETHER DEFENDANT’S SILENCE AND EVASIVENESS DURING A PHONE CALL WITH THE VICTIM RECORDED BY THE JAIL WAS AN ADOPTIVE ADMISSION)

You might also like
Defendant Cannot Be Convicted of Both Intentional and Depraved Indifference Murder Where there Is a Single Victim/”Transferred Intent” Theory Explained and Applied/Insufficient Evidence Defendant Intimidated a Witness—the Witness’ Grand Jury Testimony Should Not Have Been Admitted
UNDER THE FACTS, THE TRIAL COURT PROPERLY REFUSED TO INSTRUCT THE JURY TO CONSIDER COERCION IN THE SECOND DEGREE AS A LESSER INCLUDED OFFENSE, DESPITE THE FACT THAT COERCION IN THE FIRST DEGREE AND COERCION IN THE SECOND DEGREE HAVE IDENTICAL ELEMENTS. 
THE JUDGE DID NOT CONDUCT THE REQUIRED “SEARCHING INQUIRY” BEFORE ALLOWING DEFENDANT TO PROCEED PRO SE; NEW TRIAL ORDERED (CT APP).
EVIDENCE INSUFFICIENT TO DEMONSTRATE DEFENDANT COULD CONTROL WHETHER CHILDREN ENTERED OR REMAINED IN AN APARTMENT WHERE DRUGS WERE FOUND.
DEFENDANT, WHO WAS CHARGED WITH FIRST DEGREE ROBBERY, PRESENTED NO EVIDENCE THE BB GUN DISPLAYED DURING THE ROBBERY WAS NOT CAPABLE OF CAUSING DEATH OR SERIOUS INJURY; THEREFORE THE TRIAL JUDGE PROPERLY REFUSED TO INSTRUCT THE JURY ON THE “DISPLAYED-WEAPON-COULD-NOT-CAUSE-DEATH-OR-SERIOUS-INJURY” AFFIRMATIVE DEFENSE; A THREE-JUDGE DISSENT ARGUED THAT, BECAUSE IT WAS UNCONTROVERTED THAT DEFENDANT DISPLAYED A BB GUN, SECOND DEGREE ROBBERY WAS THE ONLY AVAILABLE CHARGE (CT APP).
CRIMINAL ASSAULT BY ONE HOCKEY GAME SPECTATOR AGAINST ANOTHER NOT FORESEEABLE; YOUTH HOCKEY ASSOCIATION NOT NEGLIGENT.
IN ANSWERING TWO CERTIFIED QUESTIONS FROM THE SECOND CIRCUIT, THE COURT OF APPEALS HELD THAT THE FORECLOSURE ABUSE PREVENTION ACT (FAPA) APPLIED RETROACTIVELY AND DID NOT VIOLATE SUBSTANTIVE OR PROCEDURAL DUE PROCESS UNDER THE NEW YORK CONSTITUTION (CT APP)
DEPARTMENT OF AGRICULTURE’S RULE PROHIBITING DEPARTMENT INSPECTORS FROM RUNNING FOR PUBLIC OFFICE IS NOT AN UNCONSTITUTIONAL RESTRICTION OF FREE SPEECH (CT APP).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

CRUEL AND UNUSUAL PUNISHMENT ARGUMENT NOT PRESERVED FOR REVIEW. HUGE CONSTRUCTION CRANE DESTROYED IN SUPERSTORM SANDY NOT COVERED BY INSURANCE,...