v.

NOEL CIAPETTA, Appellant.

Submitted By: Tammy Feman (counsel for the appellant); Douglas Noll (counsel for the respondent)

Judgment Reversed: Andrew J. DiPaola, P.J.; Angelo J. Ingrassia & Howard E. Levitt, JJ.

DECISION OF THE COURT

<SM-1>

Appeal by defendant from judgments of the District Court, Nassau County (P. Skelos, J. at jury trial and sentence) rendered on January 10, 1997, convicting him of driving while impaired by drugs, unlawful possession of marijuana and making an unsafe lane change and imposing sentence.

Judgment unanimously reversed on the law and facts, fine, if paid, remitted and matter remanded for a new trial.

At a precharge conference, which took place after summations, the defendant stated that his attorney did not inform the court what he was told by defendant and also indicated that he wished to testify on his own behalf. Without making any inquiry whatsoever, the court advised defendant that <SM-2> only his attorney could speak for him. Defense counsel then immediately proceeded to discuss the proposed charge. The right to testify is a fundamental right and the decision whether to exercise it is one reserved to the defendant and not his attorney (Jones v. Barnes, 463 US 745, 751; People v. White, 73 NY2d 468, 478, cert denied 493 US 859). Although, after the conclusion of the trial, a request by a defendant to testify is addressed to the discretion of the court, under the circumstances of this case and in view of the magnitude of the right involved, it was an abuse of such discretion to deny the request without inquiry (see, People v. Burke, 176 AD2d 1000, lv denied 79 NY2d 825; People v. Hendricks, 114 AD2d 510; People v. Harami, 93 AD2d 867; cf., People v. Washington, 71 NY2d 916, 918 wherein however, on remand to the Appellate Division [145 AD2d 670], it was held that the trial court improvidently exercised its discretion).

We disagree with defendant's contentions that the court should have given an interested witness instruction as to Officer Tyson (People v. Holmes, 117 AD2d 480); see also, People v. Gomez, 137 AD2d 556) and that guilt was not otherwise established beyond a reasonable doubt.

We reach no other contentions.

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