You are here: / / THE JURY SHOULD NOT HAVE BEEN ALLOWED TO CONSIDER A THEORY OF DEPRAVED...

THE JURY SHOULD NOT HAVE BEEN ALLOWED TO CONSIDER A THEORY OF DEPRAVED INDIFFERENCE MURDER WHICH WAS NOT ALLEGED IN THE BILL OF PARTICULARS (FOURTH DEPT).

The Fourth Department, reversing defendant’s murder conviction and ordering a new trial, determined the jury instructions allowed the jury to consider a theory of prosecution that was not alleged in the bill of particulars. The defendant was charged with hitting and shaking the child victim, but the jury was allowed to consider defendant’s alleged inaction after the alleged assault:

“A defendant has a right to be tried only for the crimes charged in the indictment” … . ” ‘Where the prosecution is limited by the indictment or bill of particulars to a certain theory or theories, the court must hold the prosecution to such narrower theory or theories’ ” … . We agree with defendant that the People’s theory of depraved indifference, as outlined in the bill of particulars, was limited to defendant’s assaultive conduct, i.e., his infliction of head injuries by shaking or hitting the child, and that the court’s instruction allowed the jury to consider, in addition to the specifically delineated assaultive conduct, defendant’s “inaction” after the assault ended. … [D]efendant objected during the charge conference to a modification of the depraved indifference charge. The charge, as modified, allowed the jury to … consider “the defendant’s later inaction as a factor when considering the brutal, prolonged and ultimately fatal course of conduct,” and defendant objected on the ground that such proof was outside the scope of the bill of particulars. People v Faison, 2021 NY Slip Op 05184, Fourth Dept 10-1-21

 

You might also like
Supreme Court Properly Annulled New York Division of Human Rights’ Determination there Was No Probable Cause to Believe the School District Discriminated against Petitioner When It Refused to Hire Her Because of Her Anticipated Absence (Due to Pregnancy)
SEIZURE OF COCAINE WAS NOT SUFFICIENTLY ATTENUATED FROM ILLEGAL DETENTION, SUPPRESSION SHOULD HAVE BEEN GRANTED; RULING THAT DETENTION WAS ILLEGAL WAS NOT ADVERSE TO THE DEFENDANT AND THEREFORE COULD NOT BE RECONSIDERED ON APPEAL.
Finding by Workers’ Compensation Law Judge Precluded Suit Under Labor Law and Common Law Negligence
Restaurant Chair Collapsed: No Question of Fact About Constructive Notice of Condition of the Chair/Res Ipsa Loquitur Did Not Apply
Parking Lot Not “Suitable” for Recreational Use Pursuant to General Obligations Law 9-103—Statutory Assumption of Risk Re: Riding a Bicycle in the Parking Lot Not Available
PENNSYLVANIA CRIME IS NOT THE EQUIVALENT OF A NEW YORK FELONY; DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A SECOND FELONY OFFENDER (FOURTH DEPT).
THE COUNTY IS DISTINCT FROM THE SHERIFF, AND THE SHERIFF IS DISTINCT FROM THE SHERIFF’S DEPARTMENT, ONLY THE SHERIFF IS RESPONSIBLE FOR THE HIRING AND TRAINING OF SHERIFF’S DEPUTIES, THEREFORE THE INJURED INMATE’S ACTION AGAINST THE COUNTY FOR NEGLIGENT HIRING, TRAINING, SUPERVISION AND RETENTION OF SHERIFF’S DEPUTIES WAS PROPERLY DISMISSED (FOURTH DEPT).
PLAINTIFF BICYCLIST ALLEGED HE STRUCK A FALLEN SIGNPOST WHICH WAS OBSTRUCTING THE SIDEWALK; THE TOWN DID NOT DEMONSTRATE IT DID NOT HAVE NOTICE OF THE CONDITION; PLAINTIFF DEMONSTRATED HE WAS ENTITLED TO DISCOVERY OF TOWN DOCUMENTS RELATED TO THE REPAIR OF TOWN SIGNS (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 © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

A TOWN IS NOT LIABLE FOR THE NEGLIGENCE OF A VOLUNTEER FIREFIGHTER IN A “FIRE... THE TRIAL JUDGE SHOULD NOT HAVE NEGOTIATED A PLEA DEAL WITH A CO-DEFENDANT REQUIRING...