People v. Aguirre

Appellate Division of the Supreme Court of New York

People v. Aguirre

248 A.D.2d 546, 669 N.Y.S.2d 872, 1998 N.Y. App. Div. LEXIS 2512

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 16, 1998

StatusPublished

Cited by1 cases

This text of 248 A.D.2d 546 (People v. Aguirre) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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People v. Aguirre, 248 A.D.2d 546, 669 N.Y.S.2d 872, 1998 N.Y. App. Div. LEXIS 2512 (N.Y. Ct. App. 1998).

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Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Kuffner, J.), rendered June 13, 1994, convicting him of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Although the court erred in instructing the jury, in the absence of a request by the defendant, that no adverse inference should be drawn from the defendant’s failure to testify (see, CPL 300.10 [2]; People v Vereen, 45 NY2d 856; People v Bradshaw, 154 AD2d 690), reversal is not required since the court’s instruction was short and basically mirrored the statutory text (see, People v Wilkins, 176 AD2d 976) and the defendant was reasonably alerted to the proposed content of the instruction. Furthermore, the court’s instruction was neutral in tone and in no way implied that “the defendant should have testified or that he refrained from doing so as a tactical maneuver” (People v Wilkins, supra; cf., People v Mannery, 151 AD2d 697; People v Reid, 135 AD2d 753; People v Concepcion, 128 AD2d 887). Thus, there was no reasonable possibility that the [547]*547error contributed to the defendant’s conviction (see, People v Vereen, supra, at 857; People v Santiago, 187 AD2d 682; People v Wilkins, supra; People v Bradshaw, supra).

Bracken, J. P., Rosenblatt, Krausman and Goldstein, JJ., concur.

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—Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Kuffner, J.), rendered June 13, 1994, convicting him of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Although the court erred in instructing the jury, in the absence of a request by the defendant, that no adverse inference should be drawn from the defendant’s failure to testify (see, CPL 300.10 [2]; People v Vereen, 45 NY2d 856; People v Bradshaw, 154 AD2d 690), reversal is not required since the court’s instruction was short and basically mirrored the statutory text (see, People v Wilkins, 176 AD2d 976) and the defendant was reasonably alerted to the proposed content of the instruction. Furthermore, the court’s instruction was neutral in tone and in no way implied that “the defendant should have testified or that he refrained from doing so as a tactical maneuver” (People v Wilkins, supra; cf., People v Mannery, 151 AD2d 697; People v Reid, 135 AD2d 753; People v Concepcion, 128 AD2d 887). Thus, there was no reasonable possibility that the [547]*547error contributed to the defendant’s conviction (see, People v Vereen, supra, at 857; People v Santiago, 187 AD2d 682; People v Wilkins, supra; People v Bradshaw, supra).

Bracken, J. P., Rosenblatt, Krausman and Goldstein, JJ., concur.

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Bluebook (online)

248 A.D.2d 546, 669 N.Y.S.2d 872, 1998 N.Y. App. Div. LEXIS 2512, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-aguirre-nyappdiv-1998.

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