scales of justice in an empty courtroom
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ALBANY – An appellate panel has upheld a double murder conviction where the defendant’s silence was used to undermine his claim of extreme emotional disturbance.

Although the judges of the Appellate Division, Third Department said Clinton County prosecutors violated Anthony Pavone’s right to remain silent, three of the four judges who heard the appeal said the violation was harmless. One judge said she would have reversed the conviction in the interest of justice.

People v. Pavone, 104966, arose from an incident in January 2010 when the defendant shot and killed his former girlfriend and her boyfriend in Dannemora, Clinton County. Pavone admitted shooting the victims, but asserted an affirmative defense of extreme emotional disturbance which, if successful, would have resulted in a conviction for manslaughter rather than first-degree murder.

At trial, the prosecution established that after Pavone was advised of his Miranda right to remain silent, he remained so and did not articulate to the police who arrested him that he was suffering from an extreme emotional disturbance.

Pavone’s trial attorney, John Carney of Manhattan, generally did not object to the challenged testimony or seek a curative instruction from Clinton County Judge Patrick McGill.

On appeal, attorney Paul Connolly, a solo practitioner in Delmar, Albany County, urged the court to use its interest of justice jurisdiction to reach the largely unpreserved issue and reverse the conviction. In a 3-to-1 decision, the court declined to do so.

Justice John Egan Jr., writing for the majority, said Carney’s “tactical decision … does not constitute ineffective assistance of counsel” and the underlying error does not warrant the court’s intervention. Egan said conflicting expert testimony notwithstanding, the “defendant’s own words and behaviors … completely undermine his claimed defense.”

The court said Pavone’s actions and statements and the testimony of witnesses who saw him just before the shootings established that the defendant “systematically hunted down and then executed” the victims, and that his conduct before, during and after the shootings “evidences a level of calculation, planning, calm deliberation and consciousness of guilt that is both entirely inconsistent with his claimed extreme emotional disturbance defense and completely undeserving of any leniency or mercy.”

Justices William McCarthy and Robert Rose agreed that there was “no reasonable possibility that the jury’s verdict would have been different but for the admission of the challenged testimony.”

Justice Elizabeth Garry, in dissent, would have returned the matter to a jury to determine whether Pavone, without the testimony on his silence, could satisfy his ‘preponderance of the evidence’ burden of proving extreme emotional disturbance.

“The restriction against use of a defendant’s silence is premised upon the fundamental unfairness that arises when the state implicitly assures an arrested person that silence will not be used against him or her and then reneges upon that promise,” Garry wrote. “[I] cannot conclude that the error of permitting the people to use the defendant’s post-arrest silence to suggest that he had falsified his affirmative defense was harmless beyond a reasonable doubt.”

Connolly said he is “disappointed and a little puzzled” by the decision and is considering whether to seek leave to the Court of Appeals.

Carney said his decision to remain mum and not object to the testimony regarding his client’s silence was indeed tactical. The defense attorney said he mounted a spirited and appropriate defense.

“I thought I had put on a very good defense,” Carney said. “We had excellent expert testimony …But it was a very tough sell. When you kick down a door and assassinate two people and step over the bodies and walk out, a jury is not necessarily going to be persuaded that should be excused because you were mad that your girlfriend was cheating on you.”

Clinton County District Attorney Andrew Wylie prosecuted the case at trial along with Assistant District Attorney Douglas Collyer. Assistant District Attorney Nicholas Evanovich argued the appeal on Jan. 7.

“Clearly, the evidence of guilt was overwhelming and clearly the defendant failed to meet his burden,” Wylie said.