People v. Autry

• Decision Date: 13 February 1990
• Citation: 75 N.Y.2d 836,552 N.Y.S.2d 908,552 N.E.2d 156
• Parties: , 552 N.E.2d 156 The PEOPLE of the State of New York, Respondent, v. Stephen AUTRY, Appellant. The PEOPLE of the State of New York, Respondent, v. Domingo LARA, Appellant. The PEOPLE of the State of New York, Respondent, v. James BROWN, Also Known as Brian Brooks, Appellant. The PEOPLE of the State of New York, Appellant, v. George FEHR, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 908

552 N.Y.S.2d 908

75 N.Y.2d 836, 552 N.E.2d 156

The PEOPLE of the State of New York, Respondent, v. Stephen AUTRY, Appellant.

The PEOPLE of the State of New York, Respondent, v. Domingo LARA, Appellant.

The PEOPLE of the State of New York, Respondent, v. James BROWN, Also Known as Brian Brooks, Appellant.

The PEOPLE of the State of New York, Appellant, v. George FEHR, Respondent.

Court of Appeals of New York.

Feb. 13, 1990.

[75 N.Y.2d 838] [552 N.E.2d 157] Francis A. Brady, III and Philip L. Weinstein, New York City, for appellants in the first and second above-entitled actions.

Francis A. Brady, III, Philip L. Weinstein and Sara Bennett, New York City, for appellant in the third above-entitled action.

John J. Santucci, District Attorney, Queens County (Seymour Roth, Kew Gardens, of counsel), for appellant in the fourth above-entitled action.

Robert M. Morgenthau, Dist. Atty. (Susan Corkery, Hilary Hassler, New York City, and Laurie Sapakoff, White Plains, of counsel), for respondent in the first and third above-entitled actions.

Robert T. Johnson, Dist. Atty. (Joseph M. Sise, Amsterdam, and Billie Manning, New York City, of counsel), for respondent in the second above-entitled action.

Freda S. Nisnewitz, for respondent in the fourth above-entitled action.

OPINION OF THE COURT MEMORANDUM.

In People v. Autry, 147 A.D.2d 989, 538 N.Y.S.2d 886, People v. Lara, 148 A.D.2d 340, 538 N.Y.S.2d 553 and People v. Brown, 146 A.D.2d 971, 536 N.Y.S.2d 922, the order of the Appellate Division should be affirmed. In People v. Fehr, 150 A.D.2d 601, 541 N.Y.S.2d 469, the order of the Appellate Division should be reversed.

Each of these four cases involves a claim by the defendant that the trial court's instructions to the jurors concerning their duty to draw no adverse inference from the defendant's failure to testify should have been confined to the bare words of the statute (CPL 300.10[2] requiring the court to give such a charge upon defense request, and that the more expansive charge delivered in each case violated the defendant's right against self-incrimination by unduly emphasizing the defendant's silence. (See, by contrast, the instruction recommended by the Committee on Criminal Jury Instructions of the State of New York in 1 CJI[N.Y.] 7.05.) In none of the cases did the defendant request the court, before the charge, to limit its instruction to the statutory language, nor was there any objection after the charge to alert the court to the contention now raised on appeal. As a result, the alleged errors are not preserved for our review.

Contrary to the defendants' contentions, the error, if there was any error, in the instructions does not fall within the narrow exception to the rule enunciated in People v. McLucas, 15 N.Y.2d 167, 170-171, 256 N.Y.S.2d 799, 204 N.E.2d 846 that objections to the charge must be made at trial. An objection is required to preserve a point of law for appellate review except in a very small class of cases where the error results in a trial "at basic variance with the mandate of law prescribed by Constitution or statute". (People v. Thomas, 50 N.Y.2d 467, 471, 429 N.Y.S.2d 584, 407 N.E.2d 430.) In the case of a charge error implicating defendant's right against self-incrimination, the exception to the preservation requirement may be invoked only where the language of the charge expressly or at least unambiguously conveys to the jury that the defendant should have testified (see, People v. Thomas, 50 N.Y.2d, at 472, 429 N.Y.S.2d 584, 407 N.E.2d 430, supra; ...