People v. Jeffries

• Citation: 514 N.Y.S.2d 277,129 A.D.2d 962
• Parties: PEOPLE of the State of New York, Respondent, v. Billy JEFFRIES, Appellant.
• Decision Date: 03 April 1987
• Court: New York Supreme Court Appellate Division

Page 277

514 N.Y.S.2d 277

129 A.D.2d 962

PEOPLE of the State of New York, Respondent, v. Billy JEFFRIES, Appellant.

Supreme Court, Appellate Division,

Fourth Department.

April 3, 1987.

Edward J. Nowak by Yolanda Villa, Rochester, for appellant.

Howard R. Relin by Michael Nelson, Rochester, for respondent.

Before DILLON, P.J., and GREEN, PINE, BALIO and DAVIS, JJ.

MEMORANDUM:

On October 18, 1984 at about 11:40 a.m., Officer Sexstone of the Rochester Police Department responded to a radio call of a burglary on Boston Street. When he arrived at the scene, a nearby resident yelled "they're stripping the car". Sexstone observed "a black vehicle parked in the backyard with the tire removed and two male blacks jumping the fence running south". He pursued and apprehended defendant on a porch at 544 Clifford Avenue. He took defendant into custody "for a larceny to a vehicle". As they were descending the porch stairs, defendant struck Sexstone, broke free and ran but eventually was apprehended. Defendant voluntarily told the police that "another black male had picked him up driving the vehicle in question * * * " and they had proceeded to Boston Street where they were stripping the car when the police arrived. The owner of the automobile testified that it had been stolen from a parking lot earlier that morning. When the car was recovered, it was in a damaged condition.

The indictment returned against defendant contained five counts. The first charged criminal possession of stolen property in the first degree, to wit: a 1983 Buick automobile; the second charged grand larceny in the third degree of a quantity of tires, wheels and hubcaps; the third charged criminal mischief in the third degree, to wit: damaging the 1983 Buick; the fourth charged assault in the second degree upon a police officer; the fifth charged escape in the second degree. At the close of the People's case, the grand larceny charge was dismissed because there had been no proof of value; the lesser included offense of petit larceny was submitted to the jury. Defendant was convicted of criminal possession of stolen property in the first degree, criminal mischief in the third degree and escape in the second degree as charged. He was also convicted of petit larceny, but was acquitted of second degree assault.

Defendant contends that the trial court's refusal to give a "no favorable inference" charge with regard to his failure to testify constitutes reversible error. We agree. It is well establish that since the terms of CPL 300.10[2] are mandatory, the court's failure to comply with a request to so charge constitutes reversible error (People v. Koberstein, 66 N.Y.2d 989, 499 N.Y.S.2d 379, 489 N.E.2d 1281; People v. Britt, 43 N.Y.2d 111, 400 N.Y.S.2d 785, 371 N.E.2d 504; People v. Gonzalez, 104 A.D.2d 308, 478 N.Y.S.2d 643). Although the request for the charge was made after the court had completed its initial instructions to the jury, it was neither untimely nor improper (CPL 300.10[5]; People v. Gonzalez, supra; People v. Cintron, 89 A.D.2d 590, 452 N.Y.S.2d 258). There must be a reversal and a new trial granted on the first and...