CA: Decisions for April 3, 2007

People v Havrish, 2007 NY Slip Op 02787 [available here]

Pursuant to an order of protection, the defendant in Havrish was required to surrender his firearms to police. (Havrish, 2007 NY Slip Op 02787.) Defendant complied with the order and turned over his guns; one of the handguns was not licensed, and defendant was ultimately charged with criminal possession of a weapon in the fourth degree. (Id. at __.)

The defendant argued that his Fifth Amendment right against self-incrimination covered the act of turning over the weapons, and the Court of Appeals (in a decisions written by Judge Graffeo) agreed. While acknowledging that "a person can be forced to produce real or physical evidence without offending the privilege against self-incrimination," the Court nonetheless held that in Havrish's case "the very act of production ha[d] communicative or testimonial aspects." (Id. at __.) "The statements defendant made — advising police that he owned a revolver and indicating where it was — went no further than what a person complying with such an order would have been expected to communicate. They were therefore central to and part of the act of production. And that act was the exclusive source of evidence the People relied on in pursuing the prosecution for criminal possession of a weapon." (Id. at __.)