I dissent from the affirmation of the judgment of conviction herein, not because of insufficiency of evidence (the evidence in fact supports the jury’s verdict), but because the trial court ignored a command of the Legislature. Our CPL 300.10 (subd 2) declares: "Upon 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.) In this case, the defendant chose not to testify, and his counsel timely requested that the court charge the jury as provided in the said section. The court failed to comply with counsel’s request, to which appropriate exception was made. It is no answer now, to assert, as the District Attorney does, that although the court was in error, that the defendant was not prejudiced by such omission. If that were a permissible option, i.e., that this provision of our Criminal Procedure Law is to be used only where the evidence was not overwhelming, the statute would contain permissive rather than mandatory language. The direction to charge this specific language, where a proper request is made, is no less obligatory than preceding provisions in the same section which read, "the court must state the fundamental legal principles *813applicable to criminal cases in general. Such principles include * * * the presumption of the defendant’s innocence, the requirement that guilt be proved beyond a reasonable doubt and that the jury may not, in determining the issue of guilt or innocence, consider or speculate concerning matters relating to sentence or punishment.” (Emphasis added.) Certainly, no trial court could escape appellate censure for failure to inform a jury of the presumption of innocence, or that the guilt of a defendant be proved beyond a reasonable doubt. Accordingly, it is difficult to accept a judicial view that the word "must” in one sentence of the section of the Criminal Procedure Law under consideration, has a different meaning than the word "must” in another sentence in the same section. I cannot doubt that at each of its different places in the section, the word "must” must mean "must.” In People v Mulligan (40 AD2d 165), this court found in the circumstances therein that the failure to charge CPL 300.10 was harmless error. But this court did observe: "Although the language of the statute would seem to leave no discretion to the trial court, the prejudicial effect of giving or failing to give the charge is still debated among Bench and Bar. (Cf. United States v Garguilo, 310 F2d 249, 252.)” (Mulligan, supra, p 168.) The debate should now be ended by attributing to language its obvious meaning. Defendant was entitled to the instruction requested as a matter of law and not as a matter of fact.