Opinion
Argued September 11, 1978
Decided October 19, 1978
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, JOSEPH DI FEDE, J.
Oren Root, Alice L. Litter and William E. Hellerstein for appellant.
Mario Merola, District Attorney (Timothy J. McGinn and Steven R. Kartagener of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed.
In this case the court, without request from the defendant, charged the jury that no adverse inference could be drawn from the defendant's failure to testify at the trial. At the conclusion of the charge defendant objected to the court's submission of this instruction absent a request from the defendant to do so.
Under CPL 300.10 (subd 2), the court "must deliver" a "no inference" charge to the jury when requested by the defense (People v Britt, 43 N.Y.2d 111). We do not read the statute conversely as establishing an absolute prohibition against the court exercising its discretion in submitting such a charge without a request from the defendant. This discretion, however, should be rarely exercised, since defense counsel, as a tactical matter, in many cases, may wish the charge not given.
Additionally, because of the significant difference from the standpoint of a defendant between the denial of a request for the "no inference" charge and the giving of that charge without request, there is a difference as to the availability of harmless error analysis. Where the request for the charge has been denied there can be no harmless error (People v Britt, supra). Where, however, as here the charge was given without request, there may be an application of the constitutional harmless error doctrine (People v Crimmins, 36 N.Y.2d 230, 237). In this case, since the proof of defendant's guilt was overwhelming, the error committed in submitting the charge, if even it be, was harmless.
We also reject defendant's argument that the trial court erred in denying defendant's motion to reopen the Wade hearing, since the court, having heard the testimony of the identifying officer, found that the identification was untainted by his observation of defendant's photograph and was based instead on his independent recollection (People v Ramos, 42 N.Y.2d 834, 835).
It can hardly be disputed that CPL 300.10 (subd 2) is both a recognition of and an attempt to deal with the sensitive problem that a defendant in a criminal case faces when he chooses not to take the stand. Though no unfavorable inferences are to flow from the exercise of that constitutional privilege (cf. Brooks v Tennessee, 406 U.S. 605; Griffin v California, 380 U.S. 609), failure to recognize that that ideal is seldom achieved would be to ignore reality.
Whether to give or not to give a "no inference" charge in order to attempt to eradicate a lurking adverse inference has long been an unanswerable question (see People v Britt, 52 A.D.2d 811, 813 [BIRNS, J., dissenting], revd 43 N.Y.2d 111; 18 ALR3d 1335). Experienced Judges and lawyers know that one course or the other will not necessarily quell whatever degree of prejudice may exist, but, depending on the circumstances of a particular case, indeed may heighten it.
Confronted with this dilemma, the defendant — the person directly affected — should be the only one empowered to make the tactical decision as to whether a trial court should or should not deliver a "no inference" instruction (see Lakeside v Oregon, 435 U.S. 333, 342 [STEVENS, J., dissenting]; Gross v State, 261 Ind. 489; Russell v State, 240 Ark. 97; People v Molano, 253 Cal.App.2d 841).
Section 300.10 (subd 2), deliberately worded in terms of responsiveness to a defendant's request alone, is a vigorous statement consonant with this view. By conditioning the "no inference" charge on a defendant's request "but not otherwise", the statute implies the converse as well: not only must the Trial Judge give the charge when a defendant asks for it, but he is not to do so when a defendant fails to so request, usually for fear that spotlighting his failure to testify will cause the jury to believe he has something to hide.
And now a word as to harmless error. I fail to see why, when a refusal to give a "no inference" charge over a defendant's request is authoritatively regarded as reversible error (People v Britt, 52 A.D.2d 811, supra), the converse situation which we face here can be characterized as harmless (People v Mulligan, 40 A.D.2d 165). How can it be said that the statutory mandate has been more obviously violated or that the judicial interference with the defendant's trial strategy is of greater dimension in the one case than it is in the other?
I would, therefore, vote to reverse and order a new trial.
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER and COOKE concur in memorandum; Judge FUCHSBERG dissents and votes to reverse in a separate opinion.
Order affirmed.