Citation Numbers: 177 A.D.2d 513
Filed Date: 11/4/1991
Status: Precedential
Modified Date: 10/31/2024
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Browne, J.),
Ordered that the judgment is reversed, on the law, and as a matter of discretion in the interest of justice, and a new trial is ordered. The facts have been considered and determined to have been established.
We agree with the defendant’s contentions that certain errors committed by the court during the course of his trial deprived him of a fair trial and thus we reverse his judgment of conviction. The defendant’s conviction stemmed from a so-called "buy and bust” operation during which he sold two vials of crack cocaine to an undercover officer. The undercover officer observed the defendant remove the two vials from a clear plastic bag containing other plastic vials. Immediately prior to his arrest, however, the defendant allegedly threw the bag to the ground where it landed approximately three feet away. This bag was recovered at the scene and was found to contain 21 other vials of crack cocaine.
We find that the defendant’s right to a fair trial was violated by the court’s gratuitous and expansive "no adverse inference” charge (see, CPL 300.10 [2]). The law is clear that "[a]bsent extraordinary circumstances * * * trial courts should add nothing to the plain and simple language of the statute” (People v Mercado, 154 AD2d 556, 558) in advising the jury that it is not to draw an adverse inference from the defendant’s decision not to testify (People v Mercado, supra, at 558). In this case the court unnecessarily drew the jury’s attention to the defendant’s decision not to testify and thereby gave rise to an improper inference that the defendant’s exercise of his right to remain silent was a tactical decision (see, People v Concepcion, 128 AD2d 887).
Furthermore, the court neglected to instruct the jury that in evaluating the credibility of the police officers who testified at trial, the testimony of these officers is to be accorded no greater weight than that of any other witness. Clearly, such a charge should be given (see, 1 CJI[NY] 7.08) to help the jury accurately evaluate the credibility of these witnesses. Under the circumstances of this case, we find that the failure to so instruct the jury served to deny the defendant a fair trial (see, People v Guzman, 146 AD2d 799; People v Pascullo, 120 AD2d 687).
Moreover, during cross-examination of the undercover
We have reviewed the defendant’s other contentions and find them to be without merit. We note that the trial court did not improvidently exercise its discretion in denying the defendant’s motion for a mistrial based upon the alleged Rosario error (see, People v Rice, 75 NY2d 929). Kunzeman, J. P., Balletta, Miller and O’Brien, JJ., concur.