Opinion
May 22, 1990
Appeal from the Supreme Court, New York County (Rena Uviller, J.).
Among the errors claimed by appellant is that the trial court's charge that no unfavorable inference was to be drawn from his failure to testify was "overextensive" and "implied that appellant's failure to testify was a tactical decision rather than the exercise of a constitutional right." Appellant failed to object to the charge on this ground and, therefore, the issue is not preserved for review. (People v. Chin, 67 N.Y.2d 22, 33-34; People v. Lara, 148 A.D.2d 340 [1st Dept 1989], affd 75 N.Y.2d 836.) The charge when taken as a whole did communicate the appropriate standard to the jury. (See, People v Adams, 69 N.Y.2d 805, 806.) The more advisable practice for Criminal Term, however, would be simply to give the charge set forth in the Criminal Jury Instructions (see, 1 CJI[NY] 7.05, at 273) which tracks the language of CPL 300.10 (2). (People v Lara, supra.)
The court's Sandoval ruling was not an abuse of discretion. While it would have been preferable for the trial court to have articulated its reasoning with greater elaboration, defendant is not persuasive that the court failed to balance probative value against potential undue prejudice (People v. Williams, 56 N.Y.2d 236, 239). Nor is defendant persuasive that the ruling was in error either as to the number (seven) of the crimes (see, e.g., People v. Torres, 110 A.D.2d 794 [2d Dept 1985]) or as to their predominantly larcenous nature (see, People v. Williams, supra). It is well settled that a defendant cannot shield himself from impeachment on the basis of the very frequency of his offenses, or his tendency to specialize in his criminal endeavors (see, People v. Pavao, 59 N.Y.2d 282, 292; People v. Rahman, 62 A.D.2d 968 [1st Dept 1978], affd 46 N.Y.2d 882).
Defendant's challenges to the prosecutor's summation comments are unpreserved as a matter of law (CPL 470.05) and we decline to review them in the interest of justice.
Concur — Sullivan, J.P., Carro, Rosenberger and Smith, JJ.