People v. King

¶1dissents in a memorandum as follows: As a result of defendant’s unprovoked assault, with a gun, his 19-year-old victim lost a kidney. Evidence of his guilt was overwhelming. Four eyewitnesses, who had no credible motive to lie, positively identified defendant. Their uncontradicted testimony was augmented by the defendant’s admission. And his defense, that he was being mistaken for another who was in fact the *897shooter, was not even borne out by the evidence introduced in his own behalf. Clearly this is not an instance where the "close case” rationale applies. (See, e.g., People v Abdul-Malik, 61 AD2d 657, 663.) Whatever untoward effect the prosecutor’s oblique reference to defendant’s failure to take the stand may have had, it was effectively neutralized by the charge wherein the court instructed: "Now in this case, the defendant chose not to take the stand or to testify in his defense. And this fact may not be used against him. The law has given him the right in effect to say to the prosecution, prove your case against me. It’s my judgment that the situation is such that I am not bound to take the witness stand and the law gives me the right and the law gives me that privilege. I told you about that. This is derived from the Fifth Amendment to the U. S. Constitution. And it also exists in the New York State Constitution. And I charge you that the law says there is no presumption to be taken against the defendant by reason of the fact that he does not take the witness stand. This is a rule. This and every other criminal case and every defendant has the privilege or right to rely upon it. It is a rule that no defendant is compelled to take the witness stand or offer any testimony whatsoever. By pleading not guilty, the defendant has in effect denied the charges of which he is being tried and puts into issue every material accusation against him that’s stated in the indictment. It is the prosecution which must prove him guilty and he cannot be required to testify or disprove or prove anything. The defendant has the right to stand mute. The fact that he does not take the stand in his own defense may not be considered by you as any indication of guilt or an admission of guilt or as evidence or inference of guilt. The presumption of innocence and the prosecution’s proving guilt beyond a reasonable doubt has been explained to you. Here the defendant did not come forward as a witness. This is his right and I charge you that you must not allow this fact in any way to prejudice him or to consider it as an indication or an admission of evidence or inference of guilt.” Concededly, the trial court erred when it thwarted defendant’s cross-examination of the victim with respect to his conversation with the unidentified boy who, though not an eyewitness to the shooting, asked "Are you the one that Marvin shot?” But given the overpowering proof of defendant’s guilt furnished by the four eyewitnesses that was harmless error. (People v Crimmins, 36 NY2d 230, 237.) I would affirm.