GIVING THE CORRECT “PRESUMPTION OF INNOCENCE” JURY INSTRUCTION THREE TIMES WITHOUT ACKNOWLEDGING THE ERRONEOUS INSTRUCTION WAS REVERSIBLE ERROR; CROSS-EXAMINATION ABOUT A CIVIL SUIT AGAINST A POLICE OFFICER WHO ALLEGEDLY SHOT THE PLAINTIFF SHOULD HAVE BEEN ALLOWED; THE JUDGE SHOULD HAVE HELD AN IN CAMERA REVIEW OF A POLICE OFFICER’S DISCIPLINARY RECORD (FIRST DEPT). ​

The First Department, reversing defendant’s convictions and ordering a new trial, determined: (1) although the judge accurately instructed the jury on the presumption of innocence three times, the judge failed to acknowledge the erroneous instruction, requiring reversal; (2) the judge should have allowed cross-examination of a police officer about a civil case in which the officer was alleged to have shot the plaintiff after plaintiff was subdued; and (3) the judge should have granted defendant’s motion for an in camera review of a police officer’s disciplinary record:

Notwithstanding that the court instructed the trial jury accurately and at length with regard to the presumption in its preliminary instructions, in another instruction at a break in the testimony of the first witness, and in its closing instructions, the court did not satisfy the requirement, clearly enunciated in People v Harrison (85 NY2d 891 [1995]), that “to obviate an erroneous instruction upon a material point, it must be withdrawn in such explicit terms as to preclude the inference that the jury might have been influenced by it” … . A withdrawal in explicit terms cannot be accomplished without acknowledging the erroneous instruction, identifying the error, and providing a correct instruction … .

… [T]he court improvidently exercised its discretion, under the standard set forth in People v Smith (27 NY3d 652 [2016]), in not permitting cross-examination regarding the underlying facts of a civil suit, in which a testifying police officer in the present case was a defendant alleged to have shot the plaintiff in the leg in that case after he was subdued by police officers. The existence of the suit provided a “good faith basis for inquiring,” and the allegations of excessive force were “relevant to the credibility of the law enforcement witness” … . In light of the principle “that the right of cross-examination is implicit in the constitutional right of confrontation and helps assure the accuracy of the truth-determining process” … , the seriousness of the allegation that the officer accidentally shot a [*2]suspect in the leg was sufficient to allow inquiry into the facts underlying the lawsuit.

… [T]he court should have granted defendant’s motion pursuant to People v Gissendanner (48 NY2d 543 [1979]) to the extent of conducting an in camera review of the officer’s disciplinary record, rather than forbidding all cross-examination regarding the allegations in an underlying civil suit. … The defendant’s motion should be granted when the defendant “put[s] forth in good faith . . . some factual predicate which would make it reasonably likely that the file will bear such fruit and that the quest for its contents is not merely a desperate grasping for straws” … . Here, defendant alleged that the officer inflicted pain on him by twisting his wrist when he was already subdued, and the defense learned of two lawsuits in which the officer was alleged to have engaged in similar conduct. People v Fishbein, 2025 NY Slip Op 02996, First Dept 5-15-25

Practice Point: Consult this decision for (1) the procedure for correcting an erroneous jury instruction, (2) the criteria for allowing the cross-examination of a police officer about a civil suit in which it is alleged the officer shot the plaintiff, and (3) the criteria for granting a motion to conduct an in camera review of a police officer’s disciplinary record.