People v. Davis

251 A.D.2d 1072, 673 N.Y.S.2d 964, 1998 N.Y. App. Div. LEXIS 7179

Opinion

—Judgment unanimously affirmed. Memorandum: In the absence of a request by defendant for an adverse inference charge, County Court erred in charging the jury that no adverse inference should be drawn from defendant’s failure to testify (see, CPL 300.10 [2]; People v Rozanski, 209 AD2d 1018, lv denied 84 NY2d 1038; People v Monk, 192 AD2d 1081, lv denied 81 NY2d 1077). The error, however, is harmless. Proof of defendant’s guilt is overwhelming, and there is no reasonable possibility that the error might have contributed to defendant’s conviction (see, People v Crimmins, 36 NY2d 230, 237; People v Monk, supra; People v Goncalves, 143 AD2d 530, lv denied 73 NY2d 855). (Appeal from Judgment of Monroe County Court, Smith, J. — Murder, 2nd Degree.) Present — Green, J. P., Lawton, Pigott, Jr., Callahan and Balio, JJ.