Birns and Capozzoli, JJ., concur in the following memorandum by Birns, J.:
We note that the Trial Judge, despite the failure of defense counsel to request the charge, instructed the jury on the failure of the defendant to take the stand. The statutory language indicates that such charge is not to be given, absent request of the defendant (CPL 300.10, subd 2). However, courts that have considered this precise issue have declined to regard such a charge as prejudicial...
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