Opinion
May 10, 1973
Judgment of conviction, Supreme Court, Bronx County, rendered January 18, 1972, unanimously affirmed. It should be noted, however, that the language of the Court of Appeals as set forth in People v. Fitzgerald ( 156 N.Y. 253, 266), has essential validity and should be followed: "In the trial of a criminal case it can never be necessary to add anything to the plain and simple language of the statute on this subject. The fact that the accused does not testify in his own behalf cannot be permitted to create any presumption against him. That is the plain mandate of the law, and the force of the proposition should not be weakened and destroyed with the jury by qualifying words."
Concur — Markewich, J.P., Kupferman, Lane and Capozzoli, JJ.