People v. McCargo

67 A.D.2d 955, 413 N.Y.S.2d 222, 1979 N.Y. App. Div. LEXIS 10732

Opinion

— Appeal by defendant from a judgment of the County Court, Nassau County, rendered February 15, 1978, convicting him of burglary in the third degree and petit larceny, upon a jury verdict, and imposing sentence. Judgment affirmed. Prior to the selection of the second alternate juror the court stated that defense counsel had requested that it charge that no unfavorable inference could be drawn against the defendant if he failed to take the witness stand on his own behalf. Although no objection or exception was taken to the statement it was improper for the court to tell the jury that such a request had been made by the defendant. (See People vMcLucas, 15 NY2d 167; People v Muir, 51 AD2d 859; People v Strawder, 54 AD2d 743.) However, the court did not repeat the error when it charged the jury at the end of the case, so that the jury’s attention was not directed to that isolated remark (cf. People v Newman, 46 NY2d 126). Here the proof of guilt was so overwhelming that the error should be disregarded (see People v Strawder, supra). We have carefully considered the defendant’s other allegations of error and, so far as they were objected to, they lack merit. With regard to the unobjected errors the interest of justice does not require our intervention. O’Connor, J. P., Rabin, Gulotta and Shapiro, JJ., concur.