THE JURY SHOULD HAVE BEEN INSTRUCTED NOT TO CONSIDER LESSER INCLUDED OFFENSES IF THEY FOUND DEFENDANT NOT GUILTY OF THE HIGHER OFFENSE ON THE BASIS OF JUSTIFICATION, NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined that the jury should have been instructed not to consider lesser offenses if it found defendant was not guilty of the greater charge on the basis of justification. The court noted that, on retrial, the jury should be instructed on two categories of assault third as lesser included offenses. Defendant was charged with attempted murder by stabbing and slashing the victim:

” This Court has held that, in a case involving a claim of self-defense, it is error for the trial court not to instruct the jurors that, if they find the defendant not guilty of a greater charge on the basis of justification, they were not to consider any lesser counts'”… . Such failure constitutes reversible error … .

Here, neither the jury instructions nor the verdict sheet on the whole adequately conveyed the principle that, if the jury found the defendant not guilty of the greater charge of attempted murder in the second degree on the basis of justification, it was not to consider any lesser counts … . On this record, it is impossible to discern whether acquittal of the top count of attempted murder in the second degree was based on the jurors’ finding of justification so as to mandate acquittal on the five lesser counts … . People v Akbar, 2019 NY Slip Op 00894, Second Dept 2-6-19