| People v David |
| 2012 NY Slip Op 03660 [95 AD3d 1031] |
| May 8, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Oswind David, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Camille O'HaraGillespie, and Jennifer L. Feldman of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Chambers,J.), rendered February 8, 2007, convicting him of assault in the first degree (two counts), upon ajury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law, the convictions of assault in the firstdegree and the sentences imposed thereon are vacated, and the matter is remitted to the SupremeCourt, Kings County, for a new trial on the counts of the indictment charging the defendant withassault in the second degree.
On January 2, 2006, the defendant was involved in an altercation during which he allegedlycut Rudolph Harper and Bevan Caesar with a box cutter. As a result, the defendant was chargedwith, inter alia, four counts of assault in the first degree (see Penal Law § 120.10[1], [2]) (two counts as to each of the two victims), and four counts of assault in the seconddegree (see Penal Law § 120.05 [1], [2]) (two counts as to each of the twovictims). Prior to trial, the court dismissed the counts of the indictment charging the defendantwith assault in the first degree under Penal Law § 120.10 (1). However, these counts weremistakenly submitted to the jury and included on the verdict sheet. In addition, the verdict sheetdid not correspond with the Supreme Court's jury instructions regarding the counts of assault inthe first degree for conduct directed at Bevan Caesar.
The defendant's conviction of assault in the first degree under Penal Law § 120.10 (1)for conduct directed at Rudolph Harper must be vacated since that count was dismissed prior totrial and was mistakenly submitted to the jury (see People v Long, 56 AD3d 685 [2008]; People v Flores, 43 AD3d 955[2007]; People v Romero, 309 AD2d 953 [2003]; People v Smiley, 303 AD2d425, 426 [2003]).
Further, it cannot be determined on this record whether the jury intended to convict thedefendant of the previously dismissed count of assault in the first degree for conduct directed atBevan Caesar (see Penal Law § 120.10 [1]), or the properly submitted count ofassault in the first degree (see Penal Law § 120.10 [2]). Thus, the defendant'sconviction of assault in the first degree for conduct directed at Bevan Caesar must be vacated(see People v McNab, 167 AD2d 858, 858 [1990]).[*2]
The jury was instructed not to consider the counts ofassault in the second degree if it found the defendant guilty of assault in the first degree. Sincethe counts of assault in the second degree were submitted to the jury but not considered becausethe jury found the defendant guilty of assault in the first degree, retrial on the assault in thesecond degree counts will not violate double jeopardy principles (see People v Charles,78 NY2d 1044 [1991]; Matter ofLazartes v Walsh, 36 AD3d 917, 918 [2007]). Accordingly, we remit the matter to theSupreme Court, Kings County, for a new trial on the counts of assault in the second degree.
In light of our determination, we need not reach the defendant's remaining contention. Florio,J.P., Belen, Roman and Sgroi, JJ., concur.