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JURY INSTRUCTIONS ON THE JUSTIFICATION DEFENSE WERE ADEQUATE, ARGUMENTS TO THE CONTRARY WERE NOT PRESERVED (FIRST DEPT).

The First Department determined the jury was properly instructed on the justification defense and any argument that the court’s instructions and the jury sheet did not comply with Velez (requiring the instruction that acquittal on the top count based upon the justification defense requires that deliberations on the lesser counts stop) was not preserved:

Defendant also asked the court, pursuant to People v Velez (131 AD3d 129 [1st Dept 2015]) and its progeny, to charge that, if the jury acquitted him of the higher count of attempted first degree assault based on justification, then it should not continue with deliberations on the lower count of second-degree assault.

The court charged the jury on the defense of justification to prevent a burglary, but declined to give a justification charge based on defense of a person. The court also told the jury that if they find defendant not guilty of either count in the indictment by reason of justification, they must also find defendant not guilty of the other count as well “because justification is a complete defense to both counts of the indictment.” Finally, the court instructed the jury on the elements of each crime, with the third element of both being “that the defendant was not justified.” During deliberations, the jury asked the court for reinstruction on the elements of the charged crimes. In a supplemental charge, the trial court reread the elements of each offense, with both including the element “that the defendant was not justified.” The jury returned a verdict finding defendant not guilty of attempted assault in the first degree, but guilty of assault in the second degree.

On appeal, defendant contends that the court’s initial and supplemental charges did not comply with Velez, and that the verdict sheet erroneously omitted the issue of justification. These claims are unpreserved. During a colloquy on the Velez issue, the court showed defense counsel a copy of its proposed charge, and defense counsel expressly agreed that it “satisfies Velez.” Further, defense counsel made no objection to the charge as given. As to the supplemental charge, defense counsel never asked the court to repeat its Velez instruction, and did not object to its absence after the charge was given. Likewise, defendant made no objections to the verdict sheet. Under the circumstances, we decline to exercise our interest of justice jurisdiction to review these unpreserved claims. People v Davis, 2019 NY Slip Op 07754, First Dept 10-29-19

 

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