Opinion
September 11, 1989
Appeal from the Supreme Court, Kings County (Moskowitz, J.).
Ordered that the order is reversed, on the law, the verdict is reinstated, and the matter is remitted to the Supreme Court, Kings County, for sentencing.
The Supreme Court erred in setting aside the verdict on the basis of the trial court's unrequested instruction on the defendant's failure to testify (see, People v. McLucas, 15 N.Y.2d 167). While the trial court acted improperly in giving such a charge (see, People v. Koberstein, 66 N.Y.2d 989; People v. Ogle, 142 A.D.2d 608; People v. Concepcion, 128 A.D.2d 887), we find that reversal of the judgment of conviction is not warranted under the circumstances of this case. The charge was "consistent in substance with the intent of the statute" (People v. Gonzalez, 72 A.D.2d 508), and not so extensive as to prejudicially draw the jury's attention to the issue (People v. Brown, 150 A.D.2d 472; People v. Davidson, 150 A.D.2d 717). In light of the overwhelming evidence of the defendant's guilt, there is no reasonable possibility that the error contributed to his conviction (see, People v. Crimmins, 36 N.Y.2d 230, 237; People v. Brown, supra, People v. Malcolm, 143 A.D.2d 1049). Mollen, P.J., Thompson, Lawrence and Eiber, JJ., concur.