People v. Bradshaw

154 A.D.2d 690

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 30, 1989
• Status: Published

Opinion

— Appeal by the defendant from a judgment of the Supreme Court, Kings County (Pesce, J.), rendered April 15, 1987, convicting him of robbery in the second degree, grand larceny in the third degree and criminal possession of stolen property in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The court improperly instructed the jury that no adverse inference should be drawn from the defendant’s failure to testify in the absence of a request by the defendant for such a charge (see, People v Koberstein, 66 NY2d 989; CPL 300.10 [2]). Nevertheless, we find that this error was harmless beyond a reasonable doubt because there is no reasonable probability that it contributed to the defendant’s conviction (see, People v Carlton, 146 AD2d 641; People v Malcolm, 143 AD2d 1049). There was overwhelming proof of the defendant’s guilt, and the court’s instruction did not imply that the defendant’s decision not to testify was merely a tactical maneuver instead of the exercise of a constitutional right (see, People v Ogle, 142 AD2d 608; People v Morris, 129 AD2d 591).

The defendant’s remaining contentions are unpreserved for appellate review and, in any event, without merit. Thompson, J. P., Brown, Kunzeman and Rubin, JJ., concur.