People v. Colon

143 A.D.2d 105, 531 N.Y.S.2d 355, 1988 N.Y. App. Div. LEXIS 8144

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Douglass, J.), rendered December 3, 1985, convicting him of murder in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is reversed, as a matter of discretion in the interest of justice, and a new trial is ordered; the findings of fact have been considered and are determined to have been established.

Although we find that the evidence adduced by the prosecution at trial was legally sufficient to sustain the verdict convicting the defendant, and that the verdict was not against the weight of the evidence, we conclude that reversal and a new trial are mandated by the trial court’s excessively lengthy charge regarding the defendant’s failure to testify. The charge improperly drew attention to the defendant’s silence and contained language implying that his decision not to testify was a tactical maneuver rather than the exercise of his constitutional rights (see, People v Gale, 138 AD2d 401; People v Reid, 135 AD2d 753; People v Concepcion, 128 AD2d , appeal withdrawn 69 NY2d 1002). Although the defendant did not object to the charge, reversal is mandated in the interest of justice.

In view of the foregoing, we need not consider the defendant’s remaining contentions. Mollen, P. J., Mangano, Rubin and Sullivan, JJ., concur.