People v. Davidson

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Moskowitz, J.), rendered May 21, 1987, convicting him of robbery in the second degree under indictment No. 1956/86, upon his plea of guilty, and murder in the second degree under indictment No. 2732/86, upon a jury verdict, and imposing sentences. Ordered that the judgments are affirmed. We find that the trial court’s instructions to the jury regarding the defendant’s failure to testify did not deprive him of a fair trial (see, People v Malcolm, 143 AD2d 1044). Although the court erred in delivering a charge which "exceeded the plain and simple language of CPL 300.10 (2)” (see, People v Morris, 129 AD2d 591; see also, People v McLucas, 15 NY2d 167), we conclude that there is no reasonable possibility that the error contributed to the defendant’s conviction (see, People v Crimmins, 36 NY2d 230, 237). The charge was "consistent in substance with the intent of the statute” (People v Gonzalez, 72 AD2d 508), and not so lengthy as to prejudicially draw the jury’s attention to the issue (People v Morris, supra; cf., People v Colon, 143 AD2d 105; People v Gale, 138 AD2d 401; People v Concepcion, 128 AD2d 887, appeal withdrawn 69 NY2d 1002). [718] We have examined the defendant’s remaining contention and find it to be without merit. Thompson, J. P., Brown, Rubin and Sullivan, JJ., concur.