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TRIAL COURT FAILED TO INSTRUCT THE JURY THAT FINDING DEFENDANT NOT GUILTY OF THE TOP COUNT BASED ON THE JUSTIFICATION DEFENSE PRECLUDED CONSIDERATION OF THE LESSER COUNTS, NEW TRIAL REQUIRED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, noted that the trial court failed to instruct the jury that finding the defendant not guilty of the top count (attempted murder) based upon the justification defense would preclude consideration of the lesser counts. Defendant was acquitted of attempted murder but found guilty of assault first:

… [T]he Supreme Court’s jury charge in conjunction with the verdict sheet failed to adequately convey to the jury that if it found the defendant not guilty of attempted murder in the second degree based on justification, then “it should simply render a verdict of acquittal and cease deliberation, without regard to” assault in the first degree and reckless endangerment in the first degree … . Thus, the court’s instructions, together with the verdict sheet, may have led the jurors to conclude that deliberation on each of the three counts required reconsideration of the justification defense, even if they had already acquitted the defendant of attempted murder in the second degree based on justification … . Since we cannot say with any certainty and there is no way of knowing whether the acquittal on attempted murder in the second degree was based on a finding of justification, a new trial is necessary… . In light of the defendant’s acquittal on the charge of attempted murder in the second degree, the highest offense for which the defendant may be retried is assault in the first degree … . People v Rosario, 2019 NY Slip Op 01432, Second Dept 2-27-19

 

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DENIAL OF YOUTHFUL OFFENDER STATUS WAS AN ABUSE OF DISCRETION (SECOND DEPT)... DEFENDANT ENTITLED TO PERMISSIVE ADVERSE INFERENCE JURY INSTRUCTION BASED UPON...