Opinion
June 19, 1989
Appeal from the Supreme Court, Queens County (Clabby, 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. No questions of fact have been raised or considered.
The trial court's Sandoval ruling, permitting the prosecutor to cross-examine the defendant with respect to the underlying facts of a drug-related felony conviction, did not constitute an improvident exercise of discretion. A prosecutor is not automatically precluded from asking questions concerning similar crimes. "The fact that [a] defendant may specialize in one type of criminal activity should not shield him from impeachment with prior convictions" (People v. Cherry, 106 A.D.2d 458; see also, People v. Pavao, 59 N.Y.2d 282, 292).
However, the trial court committed reversible error with respect to its comments to the jury concerning the defendant's failure to take the witness stand. Here, as in People v. Fehr ( 150 A.D.2d 601, 602), "[t]he trial court's instructions, which included language virtually identical to that condemned in People v. Reid ( 135 A.D.2d 753) and People v. Concepcion ( 128 A.D.2d 887, lv denied 69 N.Y.2d 1002), went far beyond the statutory dictates of CPL 300.10 (2) and effectively allowed the jury to draw an unfavorable inference against the defendant by virtue of his decision not to testify (see, People v. [Jimmy] Soto, 146 A.D.2d 657; People v. Morris, 129 A.D.2d 591)." Given the length of the charge and the likelihood that the defendant's decision to remain silent was viewed as a "tactical maneuver" rather than the exercise of a constitutional right, such error cannot be deemed harmless (People v. Concepcion, supra, at 888; People v. Fehr, supra). Although the defendant failed to object to the foregoing instruction, an objection was not required to preserve the error for appellate review (see, People v. Ahmed, 66 N.Y.2d 307, 310, rearg denied 67 N.Y.2d 647; People v Williams, 150 A.D.2d 628). Accordingly, the defendant is entitled to a new trial. Brown, J.P., Kooper, Harwood and Rosenblatt, JJ., concur.