PEOPLE v. JONES (2004)

Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., respondent, v. Clarence C. JONES, appellant.

Decided: December 13, 2004

DAVID S. RITTER, J.P., GLORIA GOLDSTEIN, NANCY E. SMITH, and STEVEN W. FISHER, JJ.

Leon H. Tracy, Jericho, N.Y., for appellant. Denis Dillon, Mineola, N.Y. (Lawrence J. Schwarz and John F. McGlynn of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Nassau County (Samenga, J.), rendered November 27, 1979, convicting him of criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is reversed, on the law, and a new trial is ordered on the count of the indictment charging the defendant with criminal possession of a weapon in the second degree.

The County Court committed reversible error when it failed to instruct the jury, as requested by the defendant, to draw no inference from the defendant's failure to testify (see CPL 300.10[2]; People v. Koberstein, 66 N.Y.2d 989, 499 N.Y.S.2d 379, 489 N.E.2d 1281; People v. Vereen, 45 N.Y.2d 856, 410 N.Y.S.2d 288, 382 N.E.2d 1151; People v. Britt, 43 N.Y.2d 111, 400 N.Y.S.2d 785, 371 N.E.2d 504).

The defendant's remaining contentions either need not be reached in light of the foregoing, are unpreserved for appellate review, or without merit.

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