From Casetext: Smarter Legal Research

People v. Whipple

Appellate Division of the Supreme Court of New York, Second Department
Nov 6, 1989
155 A.D.2d 494 (N.Y. App. Div. 1989)

Opinion

November 6, 1989

Appeal from the Supreme Court, Queens County (Rotker, J.).


Ordered that the judgment is reversed, on the law and as a matter of discretion in the interest of justice, and a new trial is ordered.

We agree with the defendant that, under the circumstances of this case, the trial court committed reversible error in its delivery to the jury of an instruction with regard to the defendant's failure to testify. Although there was no objection to the instruction, none was required to preserve the error for appellate review (see, People v Ahmed, 66 N.Y.2d 307, 310; People v McLucas, 15 N.Y.2d 167; People v Soto, 146 A.D.2d 657). Here, the lengthy instructions not only exceeded the "`plain and simple language of CPL 300.10 (2)'" (People v Soto, supra, at 657; see also, People v McLucas, supra, at 171; People v Concepcion, 128 A.D.2d 887), but also contained language implying that the defendant's decision to refrain from testifying was a "tactical maneuver", rather than the exercise of his constitutional right (see, People v Soto, supra; People v Colon, 143 A.D.2d 105; cf., People v Brown, 150 A.D.2d 472).

In view of the fact that a new trial is necessary, we note that the defense counsel should have been allowed to examine the "buy report" and "BAA-1" expense report.

We have reviewed the defendant's remaining contentions, including those raised by his supplemental pro se brief, and find them to be lacking merit. Mollen, P.J., Lawrence, Eiber and Kooper, JJ., concur.


Summaries of

People v. Whipple

Appellate Division of the Supreme Court of New York, Second Department
Nov 6, 1989
155 A.D.2d 494 (N.Y. App. Div. 1989)
Case details for

People v. Whipple

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. LLEWELLYN WHIPPLE…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Nov 6, 1989

Citations

155 A.D.2d 494 (N.Y. App. Div. 1989)

Citing Cases

People v. Wilkins

In no way did the court imply that the defendant should have testified or that he refrained from doing so as…

People v. Viera

The instruction to the jury regarding defendant's failure to testify did not exceed the "`"plain and simple…