People v. Morris

129 A.D.2d 591, 514 N.Y.S.2d 88, 1987 N.Y. App. Div. LEXIS 45270

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 6, 1987
• Status: Published

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Matthews, J.), rendered April 8, 1985, convicting him of robbery in the first degree, robbery in the second degree and assault in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The trial court erred when it delivered an unrequested instruction on the defendant’s failure to testify, which instruction also exceeded the plain and simple language of CPL 300.10 (2) (see, People v McLucas, 15 NY2d 167). Although no objection was made, none was required to preserve the error for review (see, People v Ahmed, 66 NY2d 307, 310, rearg denied 67 NY2d 647; People v McLucas, supra). We find, however, that there is no reasonable possibility that the error contributed to the defendant’s conviction (see, People v Crimmins, 36 NY2d 230, 237). The charge was neutral in tone, "consistent in substance with the intent of the statute” (People v Gonzalez, 72 AD2d 508), and not so lengthy as to prejudicially draw the jury’s attention to the issue (cf., People v Concepcion, 128 AD2d 887; People v Abreu, 74 AD2d 876). Thompson, J. P., Bracken, Brown and Eiber, JJ., concur.