You are here: / / THE JURY SHOULD HAVE BEEN TOLD NOT TO CONSIDER THE LESSER INCLUDED OFFENSE...
,

THE JURY SHOULD HAVE BEEN TOLD NOT TO CONSIDER THE LESSER INCLUDED OFFENSE IF THE JUSTIFICATION DEFENSE WAS PROVEN FOR THE HIGHER OFFENSE, THE JURY ALSO SHOULD HAVE BEEN INSTRUCTED ON THE ‘TEMPORARY INNOCENT POSSESSION OF A WEAPON’ DEFENSE, JUDGMENT OF CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined that the jury should have been instructed to stop deliberating on other counts if they found the justification defense to have been proven. The Second Department further determined that the facts justified a jury instruction on the temporary and innocent possession of a weapon:

Here, we agree with the defendant that the Supreme Court’s jury charge in conjunction with the verdict sheet failed to convey to the jury that if it found the defendant not guilty based on justification as to assault in the first degree, then “it should simply render a verdict of acquittal and cease deliberation, without regard to” assault in the second degree … . Thus, the court’s instructions, together with the verdict sheet, may have led the jurors to conclude that deliberation on each assault count … required reconsideration of the justification defense, even if they had already acquitted the defendant of assault in the first degree based on justification… . Since we cannot say with any certainty and there is no way of knowing whether the acquittal on assault in the first degree was based on a finding of justification, a new trial is necessary … . In light of the defendant’s acquittal on the charge of assault in the first degree, the highest offense for which the defendant may be retried is assault in the second degree … . …

Here, viewing the evidence in the light most favorable to the defendant, the evidence sufficiently supported the defense of temporary and lawful possession of a weapon … . The defendant testified that he picked up a kitchen knife from the floor only after Grandu jumped on his back, at which point Herron was hitting the defendant in the head with her hands and with a pan while Grandu restrained the defendant. Although the defendant then stabbed Grandu with the knife, “should a jury believe that the defendant’s use of the knife was justified, such use would have been lawful, and not utterly at odds with [the defendant’s] claim of” temporary and innocent possession … . People v Fletcher, 2018 NY Slip Op 07747, Second Dept 11-14-18

CRIMINAL LAW (THE JURY SHOULD HAVE BEEN TOLD NOT TO CONSIDER THE LESSER INCLUDED OFFENSE IF THE JUSTIFICATION DEFENSE WAS PROVEN FOR THE HIGHER OFFENSE, THE JURY ALSO SHOULD HAVE BEEN INSTRUCTED ON THE ‘TEMPORARY INNOCENT POSSESSION OF A WEAPON’ DEFENSE, JUDGMENT OF CONVICTION REVERSED (SECOND DEPT))/JURY INSTRUCTIONS (CRIMINAL LAW, THE JURY SHOULD HAVE BEEN TOLD NOT TO CONSIDER THE LESSER INCLUDED OFFENSE IF THE JUSTIFICATION DEFENSE WAS PROVEN FOR THE HIGHER OFFENSE, THE JURY ALSO SHOULD HAVE BEEN INSTRUCTED ON THE ‘TEMPORARY INNOCENT POSSESSION OF A WEAPON’ DEFENSE, JUDGMENT OF CONVICTION REVERSED (SECOND DEPT))/JUSTIFICATION (CRIMINAL LAW, THE JURY SHOULD HAVE BEEN TOLD NOT TO CONSIDER THE LESSER INCLUDED OFFENSE IF THE JUSTIFICATION DEFENSE WAS PROVEN FOR THE HIGHER OFFENSE, THE JURY ALSO SHOULD HAVE BEEN INSTRUCTED ON THE ‘TEMPORARY INNOCENT POSSESSION OF A WEAPON’ DEFENSE, JUDGMENT OF CONVICTION REVERSED (SECOND DEPT))/TEMPORARY INNOCENT POSSESSION OF A WEAPON (CRIMINAL LAW, THE JURY SHOULD HAVE BEEN TOLD NOT TO CONSIDER THE LESSER INCLUDED OFFENSE IF THE JUSTIFICATION DEFENSE WAS PROVEN FOR THE HIGHER OFFENSE, THE JURY ALSO SHOULD HAVE BEEN INSTRUCTED ON THE ‘TEMPORARY INNOCENT POSSESSION OF A WEAPON’ DEFENSE, JUDGMENT OF CONVICTION REVERSED (SECOND DEPT))/WEAPON, POSSESSION OF (THE JURY SHOULD HAVE BEEN TOLD NOT TO CONSIDER THE LESSER INCLUDED OFFENSE IF THE JUSTIFICATION DEFENSE WAS PROVEN FOR THE HIGHER OFFENSE, THE JURY ALSO SHOULD HAVE BEEN INSTRUCTED ON THE ‘TEMPORARY INNOCENT POSSESSION OF A WEAPON’ DEFENSE, JUDGMENT OF CONVICTION REVERSED (SECOND DEPT))

You might also like
ALTHOUGH THE DEBT WAS INCURRED DURING MARRIAGE, WIFE WAS NOT RESPONSIBLE FOR THE PORTION OF THE DEBT USED SOLELY TO FURTHER HUSBAND’S BUSINESS.
DEFENDANT FIRED INTO THE CAR AHEAD DURING A HIGH SPEED CHASE, DEPRAVED INDIFFERENCE MURDER AND ASSAULT CONVICTIONS AFFIRMED, TESTIMONY FROM THE FIRST TRIAL BY A WITNESS WHO HAD SINCE BEEN DEPORTED PROPERLY ADMITTED (SECOND DEPT).
In a Sexual Abuse Proceeding—Effects of Victim’s Exercise of Privilege Against Self-Incrimination and Exclusion of Appellant During Testimony of Victim Explained
PLAINTIFF WALKED INTO THE REAR OF A TRACTOR TRAILER WHICH WAS MAKING A RIGHT TURN, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).
Submission of Affidavit of Merit in Reply Improper​
Juvenile Entitled to Petition for Special Immigrant Juvenile Status—Family Court’s Ruling to the Contrary Reversed
THE USUAL PROHIBITIONS RE: VACATING ORDERS ISSUED OPON A PARTY’S DEFAULT DO NOT APPLY IN CHILD CUSTODY MATTERS; TO MODIFY CUSTODY, A FULL AND PLENARY HEARING IS NECESSARY; IF A PARTY DOES NOT APPEAR IN A MODIFICATION PROCEEDING, AN INQUEST SHOULD BE HELD TO CREATE A RECORD (SECOND DEPT).
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE WAS PREMATURE AND SHOULD HAVE BEEN DENIED; CRITERIA EXPLAINED (SECOND 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

DESPITE THE PROSECUTION’S CALLING OF 13 MEDICAL PROFESSIONALS IN THIS... WHERE THERE IS A QUESTION OF FACT WHETHER THE INJURED PLAINTIFF’S EXCLUSIVE...