Opinion
July 24, 1989
Appeal from the Supreme Court, Queens County (Sherman, J.).
Ordered that the judgment is reversed, on the law, and a new trial is ordered. No questions of fact have been raised or considered.
As the People concede, the trial court committed reversible error when it failed to charge the jury, as requested by the defendant's trial counsel, to draw no inference from the defendant's failure to testify (see, CPL 300.10; People v Britt, 43 N.Y.2d 111; People v Debroux, 133 A.D.2d 231). This error, which has been properly preserved for appellate review, is not subject to harmless error analysis (see, People v Koberstein, 66 N.Y.2d 989; People v Britt, supra). The defendant's request for the charge was timely because it was made after the court called for exceptions to its charge and before the jury had started to deliberate (see, People v Jeffries, 129 A.D.2d 962; People v Cintron, 89 A.D.2d 590). Bracken, J.P., Brown, Lawrence and Kooper, JJ., concur.