You are here: / / THE JURY SHOULD HAVE BEEN INSTRUCTED TO CONSIDER THE INCLUSORY CONCURRENT...
,

THE JURY SHOULD HAVE BEEN INSTRUCTED TO CONSIDER THE INCLUSORY CONCURRENT COUNT (MURDER SECOND) AND THE TOP COUNT (MURDER FIRST) IN THE ALTERNATIVE; THE ERROR NEED NOT BE PRESERVED FOR APPEAL (FOURTH DEPT).

The Fourth Department, noting that the issues need not be preserved for appeal, determined the jury should have been instructed to consider the top count, murder first degree, and the inclusory concurrent count, murder second degree, in the alternative:

… [T]he court should have instructed the jury to consider count two “only in the alternative as an inclusory concurrent count” of count one … . The court, … erred when it did not instruct the jury to consider counts one and two in the alernative and instead directed the jury to consider the lesser included offenses of manslaughter in the first degree and manslaughter in the second degree for each of the two murder charges. That error resulted in the jury improperly returning a verdict convicting defendant of two identical counts of manslaughter in the first degree with respect to the same victim. We therefore … modify the judgment by reversing the conviction of manslaughter in the first degree under count two of the indictment and dismissing that count of the indictment … . People v Smith, 2020 NY Slip Op 04702, Fourth Dept 8-20-20

 

You might also like
Owner of Animal Which Strays Can Be Liable in Tort for Related Motorcycle Accident
AT THE FRYE HEARING, THE PEOPLE DEMONSTRATED THE ADMISSIBILITY OF THE RESULTS OF DNA ANALYSIS USING THE STRMIX DNA ANALYSIS PROGRAM (FOURTH DEPT).
THE SORA COURT SHOULD HAVE CONSIDERED THAT THE DEFENDANT DID NOT REOFFEND DURING AN EXTENDED TIME WHEN HE WAS NOT SUPERVISED AS A MITIGATING FACTOR WHICH MAY WARRANT A DOWNWARD DEPARTURE IN THIS SORA RISK-LEVEL PROCEEDING (FOURTH DEPT).
THERE WAS NO EVIDENCE DEFENDANT POSSESSED THE FIREARM BEFORE FORMING THE INTENT TO SHOOT; THE POSSESSION OF A WEAPON SENTENCE MUST RUN CONCURRENTLY WITH THE SENTENCES FOR THE SHOOTING-RELATED OFFENSES (FOURTH DEPT).
DEFENDANT PLED GUILTY TO ATTEMPTED GANG ASSAULT, WHICH IS A LEGAL IMPOSSIBILITY AT TRIAL; DEFENDANT WAS ENTITLED TO A HEARING ON WHETHER HIS PLEA WAS RENDERED INVOLUNTARY BY COUNSEL’S INACCURATE ADVICE ABOUT THE POSSIBILITY OF CONVICTION; MATTER REMITTED (FOURTH DEPT).
SUPPRESSION OF THE WEAPON WAS PROPERLY DENIED, BUT DEFENDANT’S STATEMENT ADMITTING POSSESSION OF THE WEAPON SHOULD HAVE BEEN SUPPRESSED; ALTHOUGH THE HARMLESS ERROR DOCTRINE IS RARELY APPLIED TO UPHOLD A GUILTY PLEA WHERE SUPPRSSION SHOULD HAVE BEEN GRANTED, HERE THE APPELLATE DIVISION DETERMINED THE PLEA WOULD NOT HAVE BEEN AFFECTED BY SUPPRESSION OF THE STATEMENT; THE DISSENT DISAGREED (FOURTH DEPT). ​
Absence of Information About the Source of Double Hearsay in the Search Warrant Application Required Suppression
DEFENDANT’S STATEMENT DURING THE PLEA ALLOCUTION RAISED A VIABLE AFFIRMATIVE DEFENSE WHICH REQUIRED FURTHER INQUIRY BY THE JUDGE, ERROR IS A RARE EXCEPTION TO THE PRESERVATION REQUIREMENT (FOURTH 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

DEFENDANT WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA,... DEFENDANT WAS ARRESTED BY OFFICERS WHO BELIEVED HE WAS DEFENDANT’S BROTHER...