THE JUDGE READ THE WRONG DEFINITION OF THE CHARGED OFFENSE TO THE JURY; NEW TRIAL ON THAT CHARGE ORDERED (THIRD DEPT).

The Third Department, reversing defendant’s attempted robbery first degree conviction and ordering a new trial on that count, determined County Court provided the jury with the wrong definition of the offense:

Defendant was charged with attempted robbery in the first degree pursuant to Penal Law § 160.15 (2), defined as forcibly stealing property while armed with a deadly weapon. When the court instructed the jury on this count, it initially made reference to the requirement of being armed with a deadly weapon. However, when thereafter summarizing the elements of this crime, the court omitted the deadly weapon element and instead substituted in its place the element of causing serious physical injury to the victim, which is a different theory of robbery in the first degree … . This error was repeated by the court when the jury asked for the definitions of the crimes to be read back. Under these circumstances, the jury was left to consider an internally inconsistent definition of attempted robbery. Given that ” ‘the charge, read as a whole against the background of the evidence produced at trial, likely confused the jury regarding the correct rules to be applied in arriving at a decision’ ” … , the court’s error was not harmless and remittal for a new trial on this count is necessary … . People v Smith, 2025 NY Slip Op 05847, Third Dept 10-23-25

Practice Point: Here the judge’s reading the wrong definition of the charged offense to the jury required a new trial on that charge.