People v. Stinson

186 A.D.2d 23, 587 N.Y.S.2d 631, 1992 N.Y. App. Div. LEXIS 10467

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 10, 1992
• Status: Published

Opinions

Judgment, Supreme Court, New York County (Jerome Hornblass, J.), rendered February 5, 1991, convicting defendant, after a jury trial, of robbery in the first degree (Penal Law § 160.15 [3]) and assault in the second degree (Penal Law § 120.05 [2]), and sentencing him, as a predicate felony offender, to concurrent, indeterminate terms of imprisonment of from six to twelve years and from four to eight years, respectively, is reversed, on the law, and the matter remanded for a new trial.

By Indictment No. 2852/90, defendant was charged with robbery in the first degree, robbery in the second degree, assault in the second degree, and criminal possession of a weapon in the third degree. The charges stemmed from a March 5, 1990 incident in which defendant stabbed another man during an altercation over a brown paper bag containing a vial of pills. After the stabbing, defendant fled with the pills and was apprehended in the vicinity within minutes. A knife, containing no blood on its blade, was recovered in front of an alleyway passed by defendant.

Following a one-week trial commencing November 13, 1990, the jury convicted defendant of robbery and assault, and acquitted him of the weapon possession charge. On appeal, defendant claims error in the trial court’s charge and repugnancy in the jury’s verdict. We reverse.

Prior to submission of the case to the jury, the Trial Judge, without request, charged with respect to defendant’s decision not to testify as follows: "The defendant doesn’t have to prove or disprove anything and the fact that the defendant did not take the stand cannot be held against him. That’s his absolute right. In a sense by not taking the stand, the defendant presents to you his view that he is not guilty of the charges and since the burden is on the prosecutor to prove guilt, his silence cannot be taken in any way in a negative way, and you cannot draw any inference from his silence of guilt. Indeed, you cannot draw any inference at all. Most especially you cannot hold it against him.”

CPL 300.10 (2) provides that "[u]pon request of a defendant who did not testify in his own behalf, but not otherwise, the court must state that the fact that he did not testify is not a factor from which any inference unfavorable to the defendant may be drawn.” While declining to read this statute as one which establishes "an absolute prohibition against the court exercising its discretion in submitting such a charge” absent a request, the Court of Appeals has cautioned that such discretion "should be rarely exercised” (People v Vereen, 45 NY2d 856, 857).

More critical to this appeal, however, is a matter which we have commented upon with disfavor in three other appeals of trials presided over by this particular Trial Judge, namely, the practice of elaborating upon the language of CPL 300.10 (2). In accordance with this statute, 1 CJI(NY) 7.05 suggests that the following simple, two sentence instruction be given, with no embellishment, to the jury: "The defendant did not testify in this case. I charge you that the fact that he did not testify is not a factor from which any inference unfavorable to the defendant may be drawn.”

As in People v Garcia (160 AD2d 354, appeal dismissed 76 NY2d 934, rearg denied 76 NY2d 1018), we hold that the no adverse inference charge utilized by the instant Trial Judge unacceptably exceeded the simple CJI charge language derived from CPL 300.10 (2) and, in so doing, drew excessive attention to defendant’s decision not to take the stand. Indeed, as appellate counsel demonstrates with clause-by-clause comparisons, the language utilized here is substantially similar to that which occasioned reversal of this Trial Judge in People v Wright (174 AD2d 522).

Most recently, in People v Nunez (182 AD2d 527), we reiterated that it is "the more advisable practice * * * for the [trial] court to give the charge as set forth in the Criminal Jury Instructions”, citing People v Lara (148 AD2d 340, affd 75 NY2d 836). In a concurring opinion, Justice Sullivan aptly observed that, "while there is always room for judicial innovation in the conduct of a trial, a Judge should think long and hard about the wisdom of departing from the standard charge on such elementary matters as reasonable doubt, burden of proof and a defendant’s decision not to take the stand.” (Supra, at 528.)

In short, a Trial Judge can best avoid error by delivering the standard charge. As we wrote in People v Jones (181 AD2d 463), another recent appeal raising this issue: "The guiding principle for a charge on this subject should be that it is 'unnecessary for the trial court to embellish’ the wording of the statute (People v Gonzalez, 72 AD2d 508). The rule has long been established that it is never necessary to add anything to the plain and simple language of the statute on the subject of a criminal defendant’s failure to take the witness stand (People v Manning, 278 NY 40).”

Unlike in Nunez (supra), the error in the case at bar was preserved by objection when defense counsel took issue with the Judge’s failure to give "the standard charge”, noting the court’s confusing "references to things from the subway to polio to Lotto to the George Washington Bridge,” and specifically pointing out that a "great deal of time and effort is put into the exact specific wording of * * * the inference charge.” This latest instance of fatal enhancement of charge language on the part of the Trial Judge was compounded by error in the presumption of innocence charge which followed it. The Judge instructed with respect to that principle by stating: "The defendant, because he’s presumed innocent, if there are inferences that are equal inferences, one that leads you to conclusion that he’s guilty and another that leads you to the conclusion that he’s not guilty and they are equal inferences, the defendant is entitled under those circumstances to the inference that he’s not guilty. However, if the track is not equal and you cannot say that they are equal inferences, that they lead you to similar conclusions, the defendant then is not necessarily entitled to the inference that he’s not guilty and you draw your conclusions accordingly.”

The allusions to "equal inferences” and "equal tracks” in this charge pose the same risk recognized in "scales are even” language, namely that, if instructed that a defendant should be acquitted "if the scales are even”, a jury may draw the negative implication that, if the scales are not even, there is enough evidence to convict (see, People v Fox, 72 AD2d 146, 147-148; People v Smith, 121 AD2d 411).

With respect to defendant’s claim of repugnant verdict, predicated upon his having been acquitted of the weapon possession charge while convicted of robbery and assault with the use of a knife, we find that defendant waived the claim as a matter of law by failing to raise it prior to the discharge of the jury (CPL 310.50; People v Alfaro, 66 NY2d 985, 987; People v Satloff, 56 NY2d 745), and decline to reach it in the interest of justice. Concur—Carro, Kassal and Smith, JJ.