Opinion
May 15, 1989
Appeal from the Supreme Court, Kings County (Tomei, 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.
The trial court committed reversible error when it delivered an instruction to the jury with regard to the defendant's failure to testify, which instruction not only exceeded the "plain and simple language of CPL 300.10 (2)" (People v Morris, 129 A.D.2d 591; see also, People v McLucas, 15 N.Y.2d 167), but also contained language "`implying that his decision not to testify was a tactical maneuver rather than the exercise of his constitutional rights'" (see, People v Soto, 146 A.D.2d 657; see, People v Colon, 143 A.D.2d 105; People v Gale, 138 A.D.2d 401; cf., People v Ogle, 142 A.D.2d 608; People v Morris, supra). Mollen, P.J., Mangano, Kooper and Spatt, JJ., concur.