FAILURE TO INSTRUCT THE JURY THAT AN ACQUITTAL ON THE TOP COUNT BASED UPON THE JUSTIFICATION DEFENSE REQUIRED ACQUITTAL ON THE REMAINING CHARGES IS REVERSIBLE ERROR, DESPITE THE FAILURE TO PRESERVE THE ERROR (FIRST DEPT).
The First Department, reversing defendant’s conviction, noted the jury should have been informed that an acquittal on the top count (second degree murder) based on the justification defense required an acquittal on the remaining charges. The defendant was convicted of manslaughter. Although the error was not preserved for appeal, the court exercised its interest of justice jurisdiction:
As in cases such as People v Velez (131 AD3d 129 [1st Dept 2015]), the court’s charge failed to convey that an acquittal on the top count of second-degree murder based on a finding of justification would preclude consideration of the remaining charges. We find that this error was not harmless and warrants reversal in the interest of justice … . People v Santiago, 2017 NY Slip Op 08190, First Dept 11-21-17
CRIMINAL LAW (FAILURE TO INSTRUCT THE JURY THAT AN ACQUITTAL ON THE TOP COUNT BASED UPON THE JUSTIFICATION DEFENSE REQUIRED ACQUITTAL ON THE REMAINING CHARGES IS REVERSIBLE ERROR, DESPITE THE FAILURE TO PRESERVE THE ERROR (FIRST DEPT))/APPEALS (CRIMINAL LAW, FAILURE TO INSTRUCT THE JURY THAT AN ACQUITTAL ON THE TOP COUNT BASED UPON THE JUSTIFICATION DEFENSE REQUIRED ACQUITTAL ON THE REMAINING CHARGES IS REVERSIBLE ERROR, DESPITE THE FAILURE TO PRESERVE THE ERROR (FIRST DEPT))/JURY INSTRUCTIONS (CRIMINAL LAW, JUSTIFICATION DEFENSE, FAILURE TO INSTRUCT THE JURY THAT AN ACQUITTAL ON THE TOP COUNT BASED UPON THE JUSTIFICATION DEFENSE REQUIRED ACQUITTAL ON THE REMAINING CHARGES IS REVERSIBLE ERROR, DESPITE THE FAILURE TO PRESERVE THE ERROR (FIRST DEPT))/JUSTIFICATION DEFENSE (CRIMINAL LAW, JURY INSTRUCTIONS, FAILURE TO INSTRUCT THE JURY THAT AN ACQUITTAL ON THE TOP COUNT BASED UPON THE JUSTIFICATION DEFENSE REQUIRED ACQUITTAL ON THE REMAINING CHARGES IS REVERSIBLE ERROR, DESPITE THE FAILURE TO PRESERVE THE ERROR (FIRST DEPT))