Opinion
May 15, 1989
Appeal from the Supreme Court, Queens County (Rotker, 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.
We find merit to the defendant's contention that the trial court committed reversible error in connection with its comments to the jury regarding the defendant's failure to take the witness stand. The 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). Nor can this error be deemed harmless 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 (People v Concepcion, supra, at 888; see also, People v Colon, 143 A.D.2d 105; People v Gale, 138 A.D.2d 401). Accordingly, the defendant is entitled to a new trial.
In light of the foregoing disposition, the defendant's remaining contentions need not be addressed. Mangano, J.P., Thompson, Bracken and Eiber, JJ., concur.