People v. Fehr

150 A.D.2d 601, 541 N.Y.S.2d 469, 1989 N.Y. App. Div. LEXIS 6995

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 15, 1989
• Status: Published

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Rotker, J.) rendered March 15, 1982, convicting him of murder in the second degree (two counts) and arson in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is reversed, on the law, and a new trial is ordered. No questions of fact have been raised or considered.

We find merit to the defendant’s contention that the trial court committed reversible error in connection with its comments to the jury regarding the defendant’s failure to take the witness stand. The trial court’s instructions, which included language virtually identical to that condemned in People v Reid (135 AD2d 753) and People v Concepcion (128 AD2d 887, lv denied 69 NY2d 1002), went far beyond the statutory dictates of CPL 300.10 (2) and effectively allowed the jury to draw an unfavorable inference against the defendant by. virtue of his decision not to testify (see, People v [Jimmy] Soto, 146 AD3d 657; People v Morris, 129 AD2d 591). Nor can this error be deemed harmless given the length of the charge and the likelihood that the defendant’s decision to remain silent was viewed as a "tactical maneuver” rather than the exercise of a constitutional right (People v Concepcion, supra, at 888; see also, People v Colon, 143 AD2d 105; People v Gale, 138 AD2d 401). Accordingly, the defendant is entitled to a new trial.

In light of the foregoing disposition, the defendant’s remaining contentions need not be addressed. Mangano, J. P., Thompson, Bracken and Eiber, JJ., concur.