Monday, October 6, 2008

When it Comes to Instructions on the Right Not To Testify, Timing Is Everything

In People v Mcknight (2008 NY Slip Op 07355 [4th Dept 10/3/08]) the Court rejected the contention that reversal was warranted because the court failed to instruct the jury at the outset of the trial that defendant had a constitutional right not to testify.

Although defense counsel requested that instruction (see CPL 300.10 [2]), he did so after the People's opening statement and thus the request was untimely (see CPL 270.40). In denying the request, the court stated that it would give the instruction at the conclusion of the case, if requested to do so, and we conclude that "the court's decision to wait until after summations to deliver the instruction was not erroneous" (People v Rescigno, 152 AD2d 853, 854, lv denied 74 NY2d 851; see also People v La Mountain, 155 AD2d 717, 720, lv denied 75 NY2d 814; cf. People v Jeffries, 129 AD2d 962).