Opinion
November 10, 1987
Appeal from the Supreme Court, Monroe County, Bergin, J.
Present — Callahan, J.P., Doerr, Boomer, Green and Pine, JJ.
Judgment unanimously reversed on the law and new trial granted. Memorandum: 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." (Emphasis added.) The Court of Appeals has said that the statute does not establish an absolute prohibition against the court exercising its discretion to submit the "no inference" charge in the absence of a request by the defendant, but that this discretion should rarely be exercised (People v. Vereen, 45 N.Y.2d 856, 857). Later the court indicated that the statute did establish such a prohibition. In People v. Koberstein ( 66 N.Y.2d 989, 990), referring to CPL 300.10 (2), it said, "[t]his rule prohibiting a `no inference' charge absent the defendant's request applies to instructions given during the voir dire (see, People v. Boyd, 53 N.Y.2d 912, affg 74 A.D.2d 647)." (Emphasis added.)
Here, defense counsel told the court that he was not requesting a no inference charge, but the next day, through inadvertence, the court gave such a charge. Whether the statute is interpreted to prohibit the court from giving the charge in the absence of a request or to permit the court to exercise its discretion, but only in rare instances, the court erred. Here, there were no exceptional circumstances justifying the exercise of discretion. Furthermore, we cannot apply the harmless error doctrine because the proof of guilt was not overwhelming (see, People v. Vereen, supra, at 857; People v. Crimmins, 36 N.Y.2d 230, 237).
The court also erred in refusing defendant's request to charge the jury that reasonable doubt could be found in a lack of evidence (see, People v. Washington, 124 A.D.2d 982, lv denied 69 N.Y.2d 718).
In view of our conclusion that there must be a reversal and a new trial, we decline to reach defendant's remaining contention which was not preserved for appellate review.