Sullivan, J. P., dissents in a memorandum as follows: The majority, for a variety of reasons, concludes that the trial court’s charge to the jury regarding defendant’s not taking the stand requires reversal. In my view, the charge, taken as a whole, conveyed the appropriate standard to the jury, i.e., that no unfavorable inference could be drawn from defendant’s not testifying. Moreover, and in any event, even assuming an infirmity in the charge, defendant plainly was not prejudiced in view of the overwhelming evidence of guilt. Thus, any error in the charge was harmless. Accordingly I would affirm.
At the outset it should be noted that although defendant did not request a no adverse inference charge he did not object to the giving of the charge. Rather, he complained only that the charge was "an adverse comment on [defendant’s] not testifying” and that it "went into great length about the fact that the defendant has no obligation whatsoever and that the jury as a matter of law cannot hold it against him that he did not testify.” Thus, the issue of whether giving such a charge was an appropriate exercise of discretion has not been preserved as a question of law for this court’s review. (See, People v Autry, 75 NY2d 836.)*
As to the trial court’s statement that defendant could have testified, I see no basis for the jury inferring from this language that defendant should have testified. Although the Second Department has interpreted similar language as suggesting that the defendant should have come forward (see, e.g., People v Abreu, 74 AD2d 876), viewed objectively, the instruction is no more than an explicit statement of a notion implicit *358in the language which is to be charged upon request (that the defendant’s not testifying is not a factor from which an unfavorable inference may be drawn [CPL 300.10 (2)]).
The court’s instruction that the jury had a duty not to "hold * * * against” defendant the fact that he did not testify, albeit in language which was inartful and at variance with the precise language set forth in CPL 300.10 (2), nevertheless conveyed the appropriate standard to the jury. While, as the majority notes, the charge was excessively lengthy and certain language employed by the court could be construed as suggesting that defendant’s decision not to testify was a matter of trial strategy rather than the exercise of a constitutional right (see, People v Diggs, 151 AD2d 359, 362, Iv denied 74 NY2d 895), the charge did not imply that defendant should testify. Moreover, the record discloses no other errors warranting reversal and the proof of guilt was overwhelming.
Defendant was apprehended in the burglarized premises, his upper body and head wet and spattered with wood chips. He was positively identified—from his appearance and voice—by a witness who had seen him earlier, holding a screwdriver in his hand. That viewing was from a distance of only four to six feet and took place under good lighting conditions. The screwdriver, as well as the doorknob from the front door of the apartment, was found in the sink of the bathroom where defendant had just showered in an apparent attempt to rid himself of the evidence linking him to the broken door of the apartment.
Under the circumstances, any error was harmless beyond a reasonable doubt. (Supra.)
While the assertion in the People’s brief that defense counsel consented to a charge on defendant’s right not to testify may not be entirely accurate, the fact is the defendant did not except to the court’s giving a no inference charge without request and, thus, may be deemed to have consented.