(dissenting). I dissent reluctantly. The reasons that the majority gives for its holding are good ones, and I agree that the holding is supported, though not compelled, by our decisions in People v Williams (56 NY2d 236 [1982]) and People v Shields (46 NY2d 764 [1978]). But I cannot accept the proposition that an error that prevented a defendant from telling his side of the story to a jury can ever be “harmless.”
The majority thinks the case against defendant was so “overwhelming” (majority op at 425) that nothing he could possibly have said would have led a jury to acquit him. I do not suggest that I disagree; but I do not think it is our place, or any court’s place, to decide that question. To hold that interference with the defendant’s right to testify may be overlooked because of his failure to make a “proffer” that the trial court finds “creditable” (majority op at 426) is to sanction a trespass by the court on the jury’s province that is not consistent with the way our system works. (Cf. Holmes v South Carolina, 547 US 319, 126 S Ct 1727 [2006] [upholding a defendant’s right to present defense based on third-party guilt, despite DNA evidence showing defendant committed the crime].)
Judges Ciparick, Rosenblatt, Graffeo and Read concur with Chief Judge Kaye; Judge R.S. Smith dissents in a separate opinion; Judge Pigott taking no part.
Order affirmed.