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01/26/76 PEOPLE v. PEREZ

January 26, 1976

PEOPLE
v.
PEREZ



Appeal from Monroe, James J. Kelley, J.

Leave to appeal applied for.

Allen, P. J., and Bronson and R. M. Maher, JJ.

SYLLABUS BY THE COURT

1. -- Constitutional Law -- Right to Silence -- Comment -- Direct Examination -- Cross-Examination -- Appeal and Error.

A criminal accused has the constitutional right to remain silent when he is arrested and faced with accusation and his silence may not be used against him; and where the defendant makes no allegations on direct examination of what was said or was not said at the time of his arrest, prosecutorial cross-examination on why he did not tell the police his version of the facts when arrested is a clear violation of that right.

2. -- Right to Silence -- Trial Testimony -- Inconsistency -- Impeachment.

A defendant's silence at the time of his arrest may be properly used for impeachment of the defendant's testimony at trial only where that silence was wholly inconsistent with the defendant's statements on direct examination; the fact that he did not make a statement may be shown only to contradict his assertion that he did.

3. -- Right to Silence -- Trial Testimony -- Inconsistency -- Lack of Memory -- Appeal and Error.

There is absolutely no inconsistency between a defendant's statement at trial that he did not remember whether he made a statement at the time of his arrest and testimony by other witnesses that defendant did in fact make no statement when arrested, and a prosecutor's use of defendant's silence against him through cross-examination and closing argument in such a situation constitutes reversible error.

4. -- Homicide -- Self-Defense -- Jury -- Circumstances -- Reasonable Belief.

Two aspects which should be emphasized in instructing a jury on self-defense in a homicide trial are (1) that the self-defense justification for homicide is based on the circumstances as they appeared to the defendant, and not as they actually existed, and (2) those circumstances as they appeared to the defendant must result in a reasonable belief that he, the defendant, is in danger of death or serious bodily harm.

5. Evidence -- Rebuttal of Good Character -- Specific Bad Acts.

It is proper to rebut the evidence presented by a defendant concerning his good character in issue, but a defendant's proof of general reputation cannot be rebutted by ...


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