| People v Colasuonno |
| 2016 NY Slip Op 00021 [135 AD3d 418] |
| January 5, 2016 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Robert Colasuonno, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Jan Hoth of counsel),for appellant.
Robert T. Johnson, District Attorney, Bronx (Eric C. Washer of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (James M. Kindler, J.), rendered June 17,2014, convicting defendant, after a jury trial, of attempted assault in the first degree, andsentencing him to a prison term of four years, unanimously reversed, as a matter ofdiscretion in the interest of justice, and the matter remanded for a new trial.
The jury acquitted defendant of attempted murder in the second degree and assault inthe first degree, but found him guilty of attempted first-degree assault, arising out of thestabbing of his cousin. Justification was a central issue at trial, and, because of the defectin the court's charge, it is impossible to discern whether acquittal of the top count wasbased on the jury's finding of justification in a manner that would mandate acquittal onthe lesser count.
Considered as a whole, the court did not adequately convey the principle that, if thejury found defendant not guilty of the top count of attempted murder in the seconddegree on the basis of justification, it should not consider any lesser counts to the extentbased on the same conduct (seePeople v Velez, 131 AD3d 129, 134 [1st Dept 2015]; People v Feuer, 11 AD3d633 [2d Dept 2004]; People v Roberts, 280 AD2d 415, 416 [1st Dept 2001],lv denied 96 NY2d 906 [2001]). As the People note, the court did instruct thejury to separately analyze the justification defense for each stab wound the complainantsustained, and if the jury found defendant justified in inflicting any particular injury, toacquit him of any charges based on infliction of that injury. Nevertheless, the verdictsheet directed the jury to consider each charge in the alternative, i.e., upon an acquittal ofeach greater offense, and neither the verdict sheet nor the court's explanation of itscontents referred to justification. Furthermore, the court charged, "[I]t's an element ofeach [of the counts] 'that the defendant was not justified,' which may have led the jurorsto conclude that deliberation on each crime required reconsideration of the justificationdefense, even if they had already acquitted the defendant of the top count. . . based on justification" (Velez, 131 AD3d at 133). Thus, thecharge as a whole never adequately conveyed that, if the jury found that defendant wasnot guilty of attempted murder on the basis of justification, it was not to consider anylesser counts based on the same conduct.
Although there is evidence from which a jury could find a second unjustifiedconfrontation, no different result is warranted on these facts. If the People's evidence iscredited, there was an initial confrontation, in which the complainant was the aggressor,and defendant may have wielded the knife in self-defense, followed by a secondconfrontation in which defendant became the aggressor, and pursued and stabbed theby-then-injured complainant. Thus, the jury could have found the first confrontation tobe justified, warranting acquittal of the top count, while finding the second confrontationto be unjustified, warranting conviction of the lesser count. Nevertheless, the defensepresented a contradictory version of events that was largely consistent with the People'scase as to the initial confrontation but omitted the second confrontation, and the court didnot submit the lesser counts based solely on the second confrontation or later resultinginjuries. Thus, there is no way of knowing whether acquittal of the top count was basedon a finding of justification.
At the charge conference, defense counsel abandoned the argument he raises onappeal, rendering the issue unpreserved. Nevertheless, reversal in the interest of justice iswarranted. In light of this determination, we find it unnecessary to reach any other issues.Concur—Friedman, J.P., Sweeny, Saxe and Moskowitz, JJ.