Opinion
July 6, 1965
Appeal by defendant from a judgment of the Supreme Court, Queens County, entered October 22, 1963 after a jury trial, convicting him of burglary in the third degree and of petit larceny, and imposing sentence. Judgment reversed on the law and the facts, and new trial granted. In view of the closeness of the question of defendant's guilt, we cannot say that the portion of the court's charge relating to the failure of the defendant to take the witness stand, wherein the court deviated from the statutory language (Code Crim. Pro., § 393), did not unduly influence the jury to the prejudice of the defendant. It is not necessary to add anything to the plain and simple language of the statute ( People v. McLucas, 15 N.Y.2d 167, 171). In our opinion, a new trial is required in the interests of justice. Christ, Acting P.J., Hill, Rabin, Hopkins and Benjamin, JJ., concur.