Opinion
August 9, 1993
Appeal from the Supreme Court, Queens County (Browne, J.).
Ordered that the judgments are reversed, on the law, and a new trial is ordered. No questions of fact have been raised or considered.
We find that the defendant's right to a fair trial was violated by the court's expansive "no adverse inference" charge (see, CPL 300.10), as it unnecessarily implied that his decision not to testify was a strategic one (see, People v McCain, 177 A.D.2d 513; People v Mercado, 154 A.D.2d 556, 558).
Moreover, as the defendant was separately charged and indicted with committing two robberies against the same victim within a five-day period, the court should have instructed the jury that the incidents were distinct and separate, and that the evidence of guilt as to one of the incidents may not be considered as evidence of guilt as to the other incident (see, 1 CJI[NY] 5.39, at 239; People v Littlejohn, 125 A.D.2d 710; People v Johnson, 130 A.D.2d 804, 805).
We further find that the trial court should have granted the defense counsel's request to charge the jury that the testimony of a police officer, in and of itself, is entitled to no greater weight than that of an ordinary citizen (see, 1 CJI[NY] 7.08; People v Lopez, 190 A.D.2d 866; People v Guzman, 146 A.D.2d 799; People v Pascullo, 120 A.D.2d 687, 689). We note, however, that as this case turned on the testimony of the victim, and not that of the police officers, this error did not, in itself, warrant reversal of the defendant's convictions (cf., People v Lopez, supra; People v Guzman, supra).
Also, as the two predicate violent felony convictions relied on by the sentencing court in this case arose from two pleas of guilty entered by the defendant on the same day under separate indictments, the defendant's adjudication as a persistent violent felony offender was improper (see, People v Morse, 62 N.Y.2d 205; People v Corselli, 128 A.D.2d 545).
We have reviewed the defendant's remaining contentions and find them to be without merit. Rosenblatt, J.P., Miller, Santucci and Joy, JJ., concur.