People v. Vereen

Appellate Division of the Supreme Court of New York

People v. Vereen

57 A.D.2d 768, 394 N.Y.S.2d 429, 1977 N.Y. App. Div. LEXIS 11924

Appellate Division of the Supreme Court of the State of New York·Decided May 12, 1977·Published·Cited by 4 cases

Opinion

Judgment, Supreme Court, Bronx County, rendered on September 16, 1975, unanimously affirmed. Concur — Kupferman, J. P., Evans and Lane, JJ.; Birns and Capozzoli, JJ., concur in the following memorandum by Birns, J.: We note that the Trial Judge, despite the failure of defense counsel to request the charge, instructed the jury on the failure of the defendant to take the stand. The statutory language indicates that such charge is not to be given, absent request of the defendant (CPL 300.10, subd 2). However, courts that have considered this precise issue have declined to regard such a charge as prejudicial error. (See, e.g., People v Mulligan, 40 AD2d 165; cf. United States v Garguilo, 310 F2d 249, 252; People v Garcia, 51 AD2d 329, affd 41 NY2d 861, Fuchsberg, J., dissenting.) Although we have previously expressed dissent from such conclusion (People v Garcia, supra), nevertheless, we are constrained to vote for affirmance. (See, also, People v Britt, 52 AD2d 811, mot for lv to app granted.) Birns, J., dissenting.)

Free access — add to your briefcase to read the full text and ask questions with AI

Judgment, Supreme Court, Bronx County, rendered on September 16, 1975, unanimously affirmed. Concur — Kupferman, J. P., Evans and Lane, JJ.; Birns and Capozzoli, JJ., concur in the following memorandum by Birns, J.: We note that the Trial Judge, despite the failure of defense counsel to request the charge, instructed the jury on the failure of the defendant to take the stand. The statutory language indicates that such charge is not to be given, absent request of the defendant (CPL 300.10, subd 2). However, courts that have considered this precise issue have declined to regard such a charge as prejudicial error. (See, e.g., People v Mulligan, 40 AD2d 165; cf. United States v Garguilo, 310 F2d 249, 252; People v Garcia, 51 AD2d 329, affd 41 NY2d 861, Fuchsberg, J., dissenting.) Although we have previously expressed dissent from such conclusion (People v Garcia, supra), nevertheless, we are constrained to vote for affirmance. (See, also, People v Britt, 52 AD2d 811, mot for lv to app granted.) Birns, J., dissenting.)

People v. Vereen, 57 A.D.2d 768, 394 N.Y.S.2d 429, 1977 N.Y. App. Div. LEXIS 11924 (N.Y. Ct. App. 1977).

Pincite

57 A.D.2d 768 (People v. Vereen) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

Related