The Third Department, reversing defendant’s manslaughter conviction in the interest of justice, determined the jury instruction on the justification defense was flawed. The instruction did not explain that if the justification defense was the basis for acquittal on the top count (murder here) the jury must not consider the lesser counts:
… Supreme Court inadequately charged the jury regarding his justification defense. Although this issue is unpreserved inasmuch as defendant failed to raise it during the charge conference and did not object to the final charge … , we nevertheless find it appropriate to exercise our interest of justice jurisdiction to take corrective action and reverse defendant’s conviction … .
Where … a defendant raises a claim of self-defense, the trial court commits reversible error if it fails 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” … . This error was compounded by the verdict sheet, which directed the jury to consider manslaughter in the first degree if the jury found defendant not guilty of murder in the second degree; the verdict sheet did not contain a qualifier if the acquittal of murder was based on the defense of justification … . Even though … “the jury may have acquitted on the top charge without relying on defendant’s justification defense, it is nevertheless impossible to discern whether acquittal of the top count was based on the jury’s finding of justification so as to mandate acquittal on the lesser count to which justification also applied” … .People v Harris, 2022 NY Slip Op 03548, Third Dept 6-2-22
Practice Point: If the justification defense is to be considered by the jury, the jury must be instructed to stop any further deliberations (re: the lesser counts) if the justification defense is deemed to apply to the top count. Here the issue was not preserved by an objection to the jury instruction, but the Third Department reversed in the interest of justice.