Opinion
December 21, 1990
Appeal from the Erie County Court, Drury, J.
Present — Doerr, J.P., Boomer, Pine, Balio and Lawton, JJ.
Judgment unanimously reversed on the law and new trial granted. Memorandum: It was error for the trial court, in the absence of a request by defendant, to charge the jury that no unfavorable inference should be drawn from the defendant's failure to testify (see, CPL 300.10; People v. Koberstein, 66 N.Y.2d 989, 990; People v. Vereen, 45 N.Y.2d 856, 857). Furthermore, since the proof of defendant's guilt was not overwhelming, harmless error analysis is not applicable (see, People v. Travis, 134 A.D.2d 868). The trial court also erred in admitting, over defense counsel's objection, testimony from a witness regarding defendant's involvement in a plot to kill the witness's father. That testimony was admitted by the trial court to provide the jury with the contextual setting for defendant's statement that he had previously killed a barmaid named "Sandra". Although that unrelated testimony may have assisted the jury by providing the context for the statement, it was inadmissible because it was not necessary for the jury to comprehend the admissible statement (see, People v. Ely, 68 N.Y.2d 520, 531; People v. Ward, 62 N.Y.2d 816, 818). In view of our conclusions, defendant's conviction must be reversed and a new trial granted.
We have reviewed defendant's remaining contentions and find them to be without merit.