People v. Muir

51 A.D.2d 859, 379 N.Y.S.2d 564, 1976 N.Y. App. Div. LEXIS 11468

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 13, 1976
• Status: Published

Opinion

Judgment unanimously reversed, on the law, and a new trial granted. Memorandum: Defendant appeals from a judgment of conviction entered upon a jury verdict which found him guilty of manslaughter in the first degree and grand larceny in the third degree. At trial defendant neither testified in his own behalf nor presented any witness. Defense counsel timely requested that, pursuant to CPL 300.10 (subd 2), the court charge that "the fact that he did not testify is not a factor from which any inference unfavorable to the defendant may be drawn.” In submitting this issue to the jury, the court stated: "Now, the defense has raised a question here about my charging you the fact that the defendant did not testify is not a factor from which any inference, unfavorable to him, the defendant, may be drawn.” Due to the qualifying preface added by the court, this charge fails to comply with the statutory requirements of CPL 300.10 (subd 2). Since the charge not only weakened the intent of this statute but also, in effect, never specifically instructed the jury to apply its content, defendant is entitled to a new trial (People v McLucas, 15 NY2d 167; People v Sullinger, 265 App Div 235). Since our decision on this issue mandates reversal, we do not reach defendant’s other assignments of error. (Appeal from judgment of Oneida County Court, convicting defendant of manslaughter, first degree, and grand larceny, third degree.) Present— Marsh, P. J., Moule, Simons, Mahoney and Goldman, JJ.