Opinion
April 6, 1987
Appeal from the Supreme Court, Kings County (Matthews, J.).
Ordered that the judgment is affirmed.
The trial court erred when it delivered an unrequested instruction on the defendant's failure to testify, which instruction also exceeded the plain and simple language of CPL 300.10 (2) (see, People v McLucas, 15 N.Y.2d 167). Although no objection was made, none was required to preserve the error for review (see, People v Ahmed, 66 N.Y.2d 307, 310, rearg denied 67 N.Y.2d 647; People v McLucas, supra). We find, however, that there is no reasonable possibility that the error contributed to the defendant's conviction (see, People v Crimmins, 36 N.Y.2d 230, 237). The charge was neutral in tone, "consistent in substance with the intent of the statute" (People v Gonzalez, 72 A.D.2d 508), and not so lengthy as to prejudicially draw the jury's attention to the issue (cf., People v Concepcion, 128 A.D.2d 887; People v Abreu, 74 A.D.2d 876). Thompson, J.P., Bracken, Brown and Eiber, JJ., concur.