Jury Instructions Which Lumped Counts Together and Did Not Give the Jury the Information Necessary to Distinguish One Count from Another Mandated a New Trial

The Second Department determined a new trial was required because the jury instructions were defective.  The court lumped counts charging the same crime together when explaining the elements, but did not give the jury any indication how the counts differed from one another.  The jury was given no indication which counts implicated defendant as an accessory and which counts implicated defendant as a principal:

We agree with the defendant that the charge, as given, suggested that if the jury found the defendant guilty of any one of the subject counts, it should find him guilty of all three counts. Furthermore, because the court’s charge failed to define the counts in a way that would distinguish them from one another, the jury could not have known which count was based on a finding that the defendant had engaged in sexual intercourse with the complainant and which count was based on accessorial liability and a finding that the codefendant had engaged in sexual intercourse with the complainant. Contrary to the People’s contention, parenthetical notations on the verdict sheet cannot supplant a court’s duty to charge the jury as required by CPL 300.10(4). Since it is not possible to determine whether the jury here actually found that the defendant had himself engaged in sexual intercourse with the complainant or that he had acted as an accessory to the codefendant’s sexual intercourse with the complainant, the defendant is entitled to a new trial on those charges … . People v Jadharry, 2014 NY Slip Op 04028, 2nd Dept 6-4-14