DEFENDANT’S UNEQUIVOCAL ASSERTION OF HIS RIGHT TO REMAIN SILENT WAS IGNORED REQUIRING SUPPRESSION OF THE SUBSEQUENT STATEMENTS; THE ERROR WAS DEEMED HARMLESS (THIRD DEPT).

The Third Department determined defendant was improperly questioned after he unequivocally asserted his right to remain silent, but found the error harmless:

Approximately 45 minutes into the interview, after defendant had been provided his Miranda rights and answered numerous inquiries, defendant told the investigators that just prior to the shooting he observed a fight between a man and a woman on Crane Street. Defendant then provided no audible responses to investigators’ questions for several minutes. One of the investigators repeated the inquiry as to the next thing defendant remembered, and, after about eight seconds of silence, defendant said “get the f**k out of here b***h, you trying to play me.” The investigator then asked defendant what he said and defendant repeated his statement. This prompted the investigator to respond that he would leave if defendant wanted him to. However, the investigator then attempted to persuade defendant to continue the interview, stressing that the investigators needed defendant’s side of the story in light of the damaging evidence against him. It is evident from this interaction that the investigators understood defendant’s statement as an unequivocal request for them to leave the room and for the interview to end … . By continuing the interview without providing further warnings, defendant’s right to remain silent was violated and the remainder of the recorded interview should have been suppressed … .

Nevertheless, our inquiry is not complete, as we must assess whether that error was harmless. “Where, as here, the asserted error is of a constitutional dimension, the error may be deemed harmless only if there is no reasonable possibility that the error might have contributed to defendant’s conviction and that it was thus harmless beyond a reasonable doubt” … . … [T]he … evidence of defendant’s guilt, which included multiple angles of video footage that depicted defendant on scene and discharging several projectiles from his firearm at a crowd, together with witness testimony that corroborated the footage, was overwhelming. * * * … [W]e conclude that the error was harmless under the constitutional standard and that reversal is not required … . People v Dorvil, 2025 NY Slip Op 00246, Third Dept 1-16-25

Practice Point: Ignoring defendant’s unequivocal assertion of his right to remain silent is an error of constitutional dimension which will be deemed harmless only if there is “no reasonable possibility” the error might have contributed to defendant’s conviction.