People v. Kimbrough

134 A.D.2d 618, 521 N.Y.S.2d 513, 1987 N.Y. App. Div. LEXIS 50829

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 30, 1987
• Status: Published

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Marras, J.), rendered May 22, 1986, convicting him of 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 language used by the trial court in its charge to the jury concerning the defendant’s decision not to testify was erroneous in that it drew the jury’s attention to the defendant’s silence and improperly allowed the jury to draw the inference that such silence was a trial tactic (see, People v Concepcion, 128 AD2d 887; see also, People v McLucas, 15 NY2d 167).

However, reversal of the judgment is not warranted because there is no reasonable possibility that the error contributed to the defendant’s conviction and, therefore, the error was harmless beyond a 'reasonable doubt (see, People v Crimmins, 36 NY2d 230, 237). In particular, it is noted that the evidence overwhelmingly established the defendant’s guilt, and the error was not compounded by other similar errors at trial (cf., People v Concepcion, supra). Mangano, J. P., Thompson, Kunzeman and Harwood, JJ., concur.