People v. Vereen
| Decision Date | 12 May 1977 |
| Citation | 394 N.Y.S.2d 429,57 A.D.2d 768 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Edward VEREEN, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
J. L. Koch, New York City, for respondent.
M. W. Brewer, New York City, for defendant-appellant.
Before KUPFERMAN, J. P., and BIRNS, EVANS, CAPOZZOLI and LANE, JJ.
Judgment, Supreme Court, Bronx County rendered on September 16, 1975, unanimously affirmed.
All concur, except BIRNS and CAPOZZOLI, JJ., who concur in the following memorandum by BIRNS, J.:
We note that the trial judge, despite the failure of defense counsel to request the charge, instructed the jury on the failure of the defendant to take the stand. The statutory language indicates that such charge is not to be given, absent request of the defendant (CPL 300.10(2)). However, courts that have considered this precise issue have declined to regard such a charge as prejudicial error. (See, e. g., People v. Mulligan, 40 A.D.2d 165, 338 N.Y.S.2d 488; cf., United States v. Garguilo, 2 Cir., 310 F.2d 249, 252; People v. Garcia, 51 A.D.2d 329, 381 N.Y.S.2d 271, affd. 41 N.Y.2d 861, 393 N.Y.S. 709, 362 N.E.2d 260, decd. February 15, 1977, Fuchsberg, J., dissenting.)
Although we have previously expressed dissent from such conclusion (People v. Garcia, supra ), nevertheless, we are constrained to vote for affirmance. (See also, People v. Britt, 52 A.D.2d 811, 383 N.Y.S.2d 602, Birns, J., dissenting, lv. to app. granted.)
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... ... In any event, assuming that no request was made, we find that any error in including it was harmless given the overwhelming proof at trial of defendant's guilt (see, People v. Baker, 153 A.D.2d 865, 545 N.Y.S.2d 684, lv. denied 74 N.Y.2d 894, 548 N.Y.S.2d 427, 547 N.E.2d 954; People v. Vereen, 57 A.D.2d 768, 394 N.Y.S.2d 429, affd. 45 N.Y.2d 856, 410 N.Y.S.2d 288, 382 N.E.2d 1151). This is especially true because, despite defendant's contentions otherwise, we find that County Court's charge was consistent with the tone of the rest of the charge; the court did not place undue emphasis ... ...
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