Judgment unanimously reversed on the law and new trial granted.
Memorandum:
CPL 300.10 (2) provides that "[u]pon request of a defendant who did not testify in his own behalf, but not otherwise, the court must state that the fact that he did not testify is not a factor from which any inference unfavorable to the defendant may be drawn." (Emphasis added.) The Court of Appeals has said that the statute does not establish an absolute prohibition against...
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