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People v. Vining

New York Court of Appeals

February 14, 2017

The People & c., Respondent,
v.
Gregory Vining, Appellant.

          Margaret E. Knight, for appellant.

          Ross D. Mazer, for respondent.

          ABDUS-SALAAM, J.

         The trial court did not abuse its discretion as a matter of law in admitting a phone call between defendant and his ex-girlfriend as an adoptive admission. Once the People satisfied the threshold evidentiary requirements for admissibility, the call was properly placed before the jury to weigh its import and significance. That the call was recorded while defendant was incarcerated does not change our analysis.

         I.

         Defendant was charged with several counts of assault, trespass and criminal mischief, all arising out of incidents involving him and his ex-girlfriend. The proof at trial established that they had a tumultuous relationship. The People introduced evidence of separate crimes from different dates. One involved defendant purposefully breaking the victim's cable box and hitting her in the face; another involved him pushing her to the ground and stomping on her chest, ultimately breaking two of her ribs; and the third involved him entering her apartment without her permission and remaining until he was arrested. As the People conceded, the victim was not the most reliable witness. She had problems with alcohol and drugs, a criminal history which included violence toward other ex-partners, mental health issues related to depression and schizophrenia, and had, on more than one occasion, either lied to or been less than forthcoming with the police and the District Attorney's Office. She did not appear for her scheduled testimony at the start of trial and had to be forcibly brought to court in handcuffs. The jury was aware of these issues.

         During the trial, the court, upon the People's application, allowed the prosecutor to play a telephone call made from defendant to the victim while he was incarcerated. The People sought to introduce the call as an adoptive admission by silence, which defendant opposed. During the conversation, the victim repeatedly accused defendant of breaking her ribs. Defendant never denied the allegations, and instead gave non-responsive and evasive answers. For example, after she forcefully stated many times that he had broken her ribs and shown no sympathy, his response was "so I'm a threat to you?" When she said he needed time to think and change so he would not do this to anyone else, he responded by asking whether his brother had called her. They also discussed a potential jail sentence, when he accused her of "not caring" if he got "a year."

         The trial court allowed defense counsel to craft a limiting instruction, and counsel offered the following, which the court read to the jury before the call was played and again during its final charge:

I'm allowing the conversation into evidence for the limited purpose of having you determine if such failure to respond and to remain silent is indeed an admission, and if you so find, give such admission whatever weight you deem appropriate in determining its significance.
In making this determination, you should apply the same tests you would use in your own everyday life in doing so.
You may wish to keep in mind, one, an individual['s] silence may be attributable to his awareness that he is under no obligation to speak.
Two: An individual's natural caution that arises from his knowledge that anything he says may be used against him.
Three: An individual may refrain from speaking because he believes that efforts to exonerate himself under the circumstances would be futile.
Now, to the extent that the telephone call references the potential jail sentence, the jury is to disregard ...

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