
    The People of the State of New York, Respondent, v Edward Vereen, Appellant.
   Judgment, Supreme Court, Bronx County, rendered on September 16, 1975, unanimously affirmed. Concur — Kupferman, J. P., Evans and Lane, JJ.; Birns and Capozzoli, JJ., concur in the following memorandum by Birns, J.: We note that the Trial Judge, despite the failure of defense counsel to request the charge, instructed the jury on the failure of the defendant to take the stand. The statutory language indicates that such charge is not to be given, absent request of the defendant (CPL 300.10, subd 2). However, courts that have considered this precise issue have declined to regard such a charge as prejudicial error. (See, e.g., People v Mulligan, 40 AD2d 165; cf. United States v Garguilo, 310 F2d 249, 252; People v Garcia, 51 AD2d 329, affd 41 NY2d 861, Fuchsberg, J., dissenting.) Although we have previously expressed dissent from such conclusion (People v Garcia, supra), nevertheless, we are constrained to vote for affirmance. (See, also, People v Britt, 52 AD2d 811, mot for lv to app granted.) Birns, J., dissenting.)  