People v. Lara

Judgment of the Supreme Court, Bronx County (George Donald Covington, J.), rendered August 24, 1987, convicting defendant, after trial by jury, of attempted sexual abuse in the first degree and sentencing him as a second felony offender to a term of 2 to 4 years’ imprisonment, is unanimously affirmed.

The trial court instructed the jury that defendant’s election not to testify should not be used against him. Defendant contends that the court overemphasized this point, that the contents of the charge as given conveyed the impression that defendant’s failure to testify was a tactical decision rather than the exercise of a constitutional right. Defendant failed to object to the charge on this ground and, hence, this issue has not been preserved for appeal (see, People v Chin, 67 NY2d 22, 33). In any event, the charge when taken as a whole did communicate the appropriate standard to the jury (see, People v Adams, 69 NY2d 805). However, the more advisable practice for Criminal Term in the future would be simply to give the charge as set forth in the Criminal Jury Instructions (see, 1 CJI[NY] 7.05, at 273), which apparently tracks the language of the statute (CPL 300.10 [2]). Concur — Kupferman, J. P., Asch, Kassal, Rosenberger and Smith, JJ.