New York Appellate Digest
  • Home
  • About
  • Just Released
  • Update Service
  • Streamlined Research
  • CLE Courses
  • Contact
  • Menu Menu
You are here: Home1 / Appeals2 / FAILURE TO INSTRUCT THE JURY THAT ACQUITTAL ON THE TOP COUNT BASED UPON...
Appeals, Criminal Law

FAILURE TO INSTRUCT THE JURY THAT ACQUITTAL ON THE TOP COUNT BASED UPON THE JUSTIFICATION DEFENSE REQUIRED ACQUITTAL ON ALL THE RELATED LESSER COUNTS REQUIRED REVERSAL (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the jury was not properly instructed on the justification defense. The defendant was acquitted of the top count, attempted murder, and was convicted attempted assault first, a lesser included offense. The jury was not told that an acquittal on the top count based upon the justification defense required an acquittal on all the counts to which the justification defense applied. The issue was not preserved but was considered in the interest of justice:

“[I]n a case involving a claim of self-defense, it is error for the trial court not to instruct the [jury] that, if [it finds] the defendant not guilty of a greater charge on the basis of justification, [it is] not to consider any lesser counts” … . Such failure constitutes reversible error … . …

… [T]he court’s instructions, together with the verdict sheet, failed to adequately convey to the jury that, if it found defendant not guilty of attempted murder in the second degree based on justification, it was not to consider the lesser counts to which the justification defense applied … . People v Daniels, 2019 NY Slip Op 05343, Third Dept 7-3-19

 

July 3, 2019
Tags: Third Department
Share this entry
  • Share on WhatsApp
https://www.newyorkappellatedigest.com/wp-content/uploads/2018/03/NYAppelateLogo-White-1.png 0 0 Bruce Freeman https://www.newyorkappellatedigest.com/wp-content/uploads/2018/03/NYAppelateLogo-White-1.png Bruce Freeman2019-07-03 10:35:392020-01-24 05:46:02FAILURE TO INSTRUCT THE JURY THAT ACQUITTAL ON THE TOP COUNT BASED UPON THE JUSTIFICATION DEFENSE REQUIRED ACQUITTAL ON ALL THE RELATED LESSER COUNTS REQUIRED REVERSAL (THIRD DEPT).
You might also like
Reasons for Refusal of Temporary Job Not Sufficient; Claimant Disqualified
DEFENDANT SHOT ANOTHER HUNTER AND WAS CHARGED WITH AND CONVICTED OF (RECKLESS) ASSAULT SECOND, DEFENSE REQUEST FOR A JURY INSTRUCTION ON (NEGLIGENT) ASSAULT THIRD SHOULD HAVE BEEN GRANTED, NEW TRIAL ORDERED (THIRD DEPT).
Application for a Full Board Review Must Be Considered by a Panel of At Least Three Members of the Workers’ Compensation Board
SUPREME COURT SHOULD NOT HAVE DEVIATED FROM THE STIPULATION ENTERED INTO BY THE PARTIES WHICH DESCRIBED THE DAMAGES AVAILABLE UNDER REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) FOR THE INADVERTENT REMOVAL OF TREES FROM PLAINTIFFS’ PROPERTY BY DEFENDANTS (THIRD DEPT).
BROKER NOT LIABLE FOR FAILURE TO PROCURE INSURANCE TO COVER INJURY TO CONSTRUCTION WORKERS, BROKER HAD NOTIFIED THE PROPERTY OWNER OF THE GAP IN COVERAGE, $6,000,000 VERDICT IN FAVOR OF PLAINTIFF CONSTRUCTION WORKER NOT COVERED (THIRD DEPT).
ONE PURPOSE FOR ASSESSING ATTORNEY’S FEES AGAINST THE AGENCY IN A FREEDOM OF INFORMATION LAW CASE IS TO DISCOURAGE DELAYS IN RESPONSES TO REQUESTS FOR DOCUMENTS; THEREFORE, EVEN THOUGH THE DEPARTMENT OF ENVIRONMENTAL PROTECTION (DEP) TURNED OVER THE DOCUMENTS BEFORE THE APPEAL, THE DEP STILL SHOULD PAY THE ATTORNEY’S FEES RELATED TO THE APPEAL (THIRD DEPT).
COMPLAINT STATED NEGLIGENCE CAUSES OF ACTION AGAINST THE TOWN, A SPECIAL RELATIONSHIP BETWEEN PLAINTIFFS AND THE TOWN WAS SUFFICIENTLY ALLEGED, AND IT WAS SUFFICIENTLY ALLEGED THAT GOVERNMENTAL IMMUNITY DID NOT APPLY BECAUSE THE TOWN ENGINEER DID NOT HAVE THE AUTHORITY OR DISCRETION TO ACT AS HE DID (THIRD DEPT).
THE CARRIER’S APPLICATION FOR APPEAL SHOULD NOT HAVE BEEN DISMISSED FOR FAILURE TO INCLUDE THE DATE WHEN THE OBJECTION WHICH IS THE BASIS OF THE APPEAL WAS MADE; THERE WAS ONLY ONE HEARING AND THE REGULATION IN EFFECT AT THE TIME ONLY ASKED “WHEN” THE OBJECTION WAS MADE (THIRD DEPT).

Categories

  • Abuse of Process
  • Account Stated
  • Accountant Malpractice
  • Administrative Law
  • Agency
  • Animal Law
  • Appeals
  • Arbitration
  • Architectural Malpractice
  • Associations
  • Attorneys
  • Banking Law
  • Bankruptcy
  • Battery
  • Chiropractor Malpractice
  • Civil Commitment
  • Civil Conspiracy
  • Civil Forfeiture
  • Civil Procedure
  • Civil Rights Law
  • Condominium Corporations
  • Condominiums
  • Constitutional Law
  • Consumer Law
  • Contempt
  • Contract Law
  • Conversion
  • Cooperatives
  • Copyright
  • Corporation Law
  • Correction Law
  • County Law
  • Court of Claims
  • Criminal Law
  • Debtor-Creditor
  • Defamation
  • Dental Malpractice
  • Disciplinary Hearings (Inmates)
  • Education-School Law
  • Election Law
  • Eminent Domain
  • Employment Law
  • Engineering Malpractice
  • Environmental Law
  • Equitable Recoupment
  • Evidence
  • Fair Credit Reporting Act
  • Fair Housing Act
  • Fair Housing Amendments Act
  • False Arrest
  • False Claims Act
  • False Imprisonment
  • Family Law
  • Federal Employers' Liability Act (FELA)
  • Fiduciary Duty
  • Forcible Touching
  • Foreclosure
  • Fraud
  • Freedom of Information Law (FOIL)
  • Human Rights Law
  • Immigration Law
  • Immunity
  • Indian Law
  • Insurance Law
  • Intellectual Property
  • Intentional Infliction of Emotional Distress
  • Involuntary Medical Treatment and Feeding (Inmates)
  • Judges
  • Judiciary Law
  • Labor Law
  • Labor Law-Construction Law
  • Land Use
  • Landlord-Tenant
  • Legal Malpractice
  • Lien Law
  • Limited Liability Company Law
  • Longshoreman's and Harbor Worker's Compensation Act
  • Malicious Prosecution
  • Maritime Law
  • Medicaid
  • Medical Malpractice
  • Mental Hygiene Law
  • Military Law
  • Money Had and Received
  • Municipal Law
  • Navigation Law
  • Negligence
  • Negligent Infliction of Emotional Distress
  • Negligent Misrepresentation
  • Notarial Misconduct
  • Nuisance
  • Partnership Law
  • Personal Property
  • Pharmacist Malpractice
  • Physician Patient Confidentiality
  • Pistol Permits
  • Prima Facie Tort
  • Private Nuisance
  • Privilege
  • Products Liability
  • Professional Malpractice
  • Public Authorities Law
  • Public Corporations
  • Public Health Law
  • Public Nuisance
  • Real Estate
  • Real Property Actions and Proceedings Law (RPAPL)
  • Real Property Law
  • Real Property Tax Law
  • Religion
  • Replevin
  • Retirement and Social Security Law
  • Securities
  • Sepulcher
  • Sex Offender Registration Act (SORA)
  • Social Services Law
  • Statutes
  • Tax Law
  • Tenant Harassment
  • Tortious Interference with Contract
  • Tortious Interference with Employment
  • Tortious Interference with Prospective Business Relations
  • Tortious Interference With Prospective Economic Advantage
  • Town Law
  • Toxic Torts
  • Trade Secrets
  • Trademarks
  • Trespass
  • Trespass to Chattels
  • Trusts and Estates
  • Uncategorized
  • Unemployment Insurance
  • Unfair Competition
  • Uniform Commercial Code
  • Usury
  • Utilities
  • Vehicle and Traffic Law
  • Victims of Gender-Motivated Violence Protection Law (VGM)
  • Village Law
  • Water Law
  • Workers' Compensation
  • Zoning

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

MOTION TO AMEND THE NOTICE OF CLAIM IN THIS SLIP AND FALL CASE SHOULD NOT HAVE... MATTER REMITTED FOR A HEARING ON WHETHER THE TRIAL COURT WAS, OR SHOULD HAVE...
Scroll to top