People v. Viera

—Judgment of the Supreme Court, Bronx County (Lawrence Tonetti, J., at jury trial and sentence), rendered on April 13, 1988, convicting defendant of criminal sale of a controlled substance in the third degree and sentencing him to an indeterminate term of imprisonment of 1 to 3 years, unanimously affirmed.

The instruction to the jury regarding defendant’s failure to testify did not exceed the " ' "plain and simple language of CPL 300.10 (2).” ’ ” (People v Whipple, 155 AD2d 494.) The protested charge did not imply that defendant’s decision not to testify was a tactical maneuver rather than the unremarkable exercise of his constitutional rights. No objection was registered to the court’s instructions, but, in any event, we have reviewed this claim and find that any problem with the length of the court’s charge or the court’s use of the word "failed” to describe defendant’s decision not to testify was harmless (see, People v Autry, 75 NY2d 836).

Defendant’s remaining contention, that the prosecutor’s summation contained several objectionable comments, is unpreserved, and were we to consider the argument, in the interests of justice, we would nonetheless affirm, finding defendant’s argument to be without merit. Concur—Murphy, P. J., Ross, Rosenberger, Asch and Ellerin, JJ.