In a full-fledged opinion by Justice Peters affirming defendant’s conviction, the Third Department determined the trial judge had made an adequate inquiry to ensure that defendant understood his right to refrain from testifying at trial. The inquiry was deemed necessary in this case because a deputy sheriff had given the defendant a religious brochure which stated that confession was the only way to avoid an “eternity in a prison called hell:”
… [A] criminal defendant has the right to testify in his or her own defense guaranteed by the Federal and State Constitutions … . This fundamental “right to testify is ‘personal’ and . . . can be waived only by the defendant,” and any such waiver must be knowingly, voluntarily and intelligently made … . To be sure, the “trial court does not have a general obligation to sua sponte ascertain if the defendant’s failure to testify was a voluntary and intelligent waiver of his [or her] right” … . However, “in exceptional, narrowly defined circumstances, judicial interjection through a direct colloquy with the defendant may be required to ensure that the defendant’s right to testify is protected” … .
We believe that such colloquy was critically necessary here. The privilege against self-incrimination – and, by extension, the decision whether to waive that privilege and testify – “is not concerned ‘with moral and psychological pressures to confess emanating from sources other than official coercion'” … . But here the deputy’s actions in foisting the religious tract upon defendant constituted an effort by law enforcement to “interfere with the free and unhampered decision of [defendant] to testify” … . Moreover, looking at “factors beyond the government’s control to determine whether [defendant’s] decision not to testify resulted from the government’s conduct,” defendant allegedly knew “chapter and verse” the biblical quotations in the tract, making defense counsel concerned that he was peculiarly susceptible to the exhortation made… . People v Robles, 105103, 3rd Dept 1-16-14