You are here: / / JURY INSTRUCTIONS ALLOWED CONSIDERATION OF A THEORY NOT ALLEGED IN THE...

JURY INSTRUCTIONS ALLOWED CONSIDERATION OF A THEORY NOT ALLEGED IN THE INDICTMENT OR BILL OF PARTICULARS, CONVICTIONS REVERSED.

The Fourth Department reversed defendant’s conviction on several counts charging sexual offenses because the jury instructions allowed consideration of theories not alleged in the indictment or bill of particulars. Therefore it was not possible to determine whether an uncharged theory was a basis for the jury’s verdict:

 

Although defendant did not object to the court’s instructions and thus did not preserve his contention for our review, we conclude that “preservation is not required” …, inasmuch as “defendant has a fundamental and nonwaivable right to be tried only on the crimes charged,” as limited by either the bill of particulars or the indictment itself … . Where the court’s jury instruction on a particular count erroneously contains an additional theory that differs from the theory alleged in the indictment, as limited by the bill of particulars, and the evidence adduced at trial could have established either theory, reversal of the conviction on that count is required because there is a possibility that the jury could have convicted the defendant upon the uncharged theory … . Indeed, such an error cannot be deemed harmless because it is impossible for an appellate court reviewing a general verdict to ascertain on which theory the jury convicted the defendant or whether the jury was unanimous with respect to the theory actually charged in that count … . People v Graves, 2016 NY Slip Op 00853, 4th Dept 2-5-16

 

CRIMINAL LAW (JURY INSTRUCTIONS ALLOWED CONSIDERATION OF A THEORY NOT CHARGED, CONVICTIONS REVERSED)/JURY INSTRUCTIONS (INSTRUCTIONS ALLOWED CONSIDERATION OF A THEORY NOT CHARGED, CONVICTIONS REVERSED)

You might also like
A MOTION TO SET ASIDE A VERDICT PURSUANT TO CPL 330.30 (1) MUST BE BASED UPON MATTERS IN THE RECORD WHICH HAVE BEEN PRESERVED FOR APPEAL; A MOTION TO SET ASIDE A VERDICT PURSUANT TO CPL 330.30 (2) CAN BE BASED UPON JUROR MISCONDUCT OF WHICH THE DEFENDANT WAS NOT AWARE PRIOR TO THE VERDICT; BUT HERE THE DEFENSE WAS AWARE OF THE ALLEGED MISCONDUCT PRIOR TO THE VERDICT AND DID NOT OBJECT (FOURTH DEPT).
Defendant’s Attorney Not Ineffective for Failing to Make a Motion to Suppress—Nature of a Motion Which, If Not Made, Would Constitute Ineffective Assistance Addressed by the Majority and the Dissent
ACQUISITION OF CELL PHONE LOCATION DATA, PLACING DEFENDANT NEAR THE MURDER SCENE, DID NOT REQUIRE A WARRANT SUPPORTED BY PROBABLE CAUSE (FOURTH DEPT).
Failure to Read Defendant His Miranda Rights, After the Defendant Interrupted the Reading of the Rights by Telling the Officer He Knew His Rights, Required Suppression of the Statements
BANK’S MANAGER WAS AWARE OF ICE IN THE PARKING LOT, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED, BANK DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE.
Trial Court Properly Pierced the Corporate Veil/Criteria for Review of a Bench Trial and for Piercing the Corporate Veil Explained
DISCOVERY REQUESTS AIMED AT AN ISSUE WHICH WAS ADMITTED BY DEFENDANTS SHOULD NOT HAVE BEEN GRANTED; BECAUSE THE ALTERNATIVE ARGUMENT FOR THE DISCOVERY REQUESTS WAS NOT SUPPORTED BY A MEMO IN THE RECORD DEMONSTRATING THE ISSUE WAS PRESERVED, THE ARGUMENT WAS REJECTED (FOURTH DEPT).
THE TRIAL JUDGE DID NOT RULE ON DEFENDANT’S MOTION FOR A TRIAL ORDER OF DISMISSAL; THE APPELLATE COURT CANNOT TREAT THE FAILURE TO RULE AS A DENIAL; MATTER REMITTED FOR A RULING (FOURTH DEPT). ​

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

MOTIONS TO SET ASIDE THE DEFENSE VERDICT AS AGAINST THE WEIGHT OF THE EVIDENCE... STATEMENTS MADE AFTER ILLEGAL ARREST NOT SUPPRESSIBLE IF SUFFICIENTLY ATTEN...