THE ELICITATION OF TESTIMONY FROM A DETECTIVE THAT DEFENDANT INVOKED HIS RIGHT TO COUNSEL AND HIS RIGHT AGAINST SELF-INCRIMINATION WAS SUBJECT TO A HARMLESS ERROR ANALYSIS AND DID NOT REQUIRE REVERSAL; THE DISSENT ARGUED THE ABSENCE OF A CURATIVE INSTRUCTION RENDERED THE ERROR REVERSIBLE (THIRD DEPT).

The Third Department determined the People’s improper elicitation of a detective’s testimony that defendant invoked his right to counsel and his right against self-incrimination was subject to a harmless error analysis and did not require reversal. The dissent disagreed:

A defendant’s invocation of his or her right against self-incrimination and/or his or her right to counsel during a custodial interrogation may not be used against him or her as part of the People’s case-in-chief … .  This is because such evidence “creates a prejudicial inference of consciousness of guilt” … . However, the People’s improper elicitation of the prejudicial evidence does not automatically result in a reversal of the judgment of conviction, even in the absence of a curative instruction or in the face of a deficient curative instruction … . Rather, any such constitutional error is subject to a harmless error analysis … . * * *

From the dissent:

The majority would have this Court engage in a harmless error analysis, whereas I would follow this Court’s articulation in People v Knowles (42 AD3d at 665), rejecting such an analysis if the trial court fails to provide “prompt and emphatic curative instructions that the jury may not draw any adverse inferences from [the] defendant’s request for counsel.” As County Court failed to do so here, defendant’s conviction should be reversed. People v Serrano, 2021 NY Slip Op 07037, Third Dept 12-16-21