The opinion of the court was delivered by: PLATT
By order to show cause, verified petition for a writ of habeas corpus and exhibits attached, petitioner seeks an order restraining the defendants from executing a six months sentence of imprisonment imposed by The Hon. Albert S. McGrover, Justice of the Supreme Court, Kings County, after a jury trial and a verdict upon a charge of perjury, or, in the alternative, for a writ of habeas corpus discharging petitioner from custody as of the day he is incarcerated.
On the return date of the petitioner's motion, counsel for the defendants agreed to an interim stay pending this Court's determination thereof.
Petitioner's conviction of perjury in the first degree was affirmed by the Appellate Division, Second Dept., on June 19, 1975, without opinion, and on December 10, 1975, the New York Court of Appeals denied leave for petitioner to appeal to that Court, without opinion.
Petitioner claims that the judgment of conviction was imposed upon him in violation of his right against self incrimination under the Fifth and Fourteenth Amendments to the United States Constitution by the prosecutor's remarks in his summation to the jury and the trial court's charge to the jury.
The principal ground advanced by counsel for the petitioner on this motion and application for a writ was the trial court's failure to charge the jury that the law does not compel a defendant in a criminal case to take the witness stand and testify and that every defendant has the right to stand mute.
It should be noted at the outset that no such request was made by counsel for the petitioner prior to or at the conclusion of the Court's charge. An examination of the records shows that prior to the charge the trial court said to petitioner's then counsel (A 66):
"THE COURT: Yes, I assume too you want me to charge failure to take the stand in this case.
MR. McKINNEY: Yes, your Honor, I will try to provide the Court with some requests to charge."
Immediately prior to the Court's charge the record discloses that (A 140):
"Mr. McKINNEY: Your Honor, so the record will reflect what I have already requested of your Honor, the defendant specifically requests that the Court charge with respect to failure of the defendant to take the stand."
The Court charged the jury as follows (A146-A147):
"Now I want to make it clear to you that under our law the defendant may testify as a witness in his own behalf. In this case the defendant did not take the stand in his own behalf, however, the fact that he did not testify is not a factor from which any ...