People v. Marabel

Order, Supreme Court, New York County (Jerome Hornblass, J.), entered September 12, 1991, which granted defendant’s CPL 330.30 motion to set aside the verdict and ordered a new trial, unanimously affirmed. The trial court properly granted defendant’s CPL 330.30 motion to set aside the verdict on the ground that its instructions to the jury regarding defendant’s right not to testify implied that defendant’s exercise of such right was a tactical maneuver and drew unnecessary attention to his silence by characterizing his decision not to testify as an "election” of his right to remain silent, and by otherwise substantially tracking the language condemned in People v Wright (174 AD2d 522) and People v Garcia (160 AD2d 354, appeal dismissed 76 NY2d 934; see also, People v Anderson, 168 AD2d 360, lv denied 78 NY2d 953). Concur—Murphy, P. J., Rosenberger, Ross and Kassal, JJ.