| People v Rowley |
| 2016 NY Slip Op 03084 [138 AD3d 577] |
| April 21, 2016 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Marc Rowley, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno ofcounsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Eric Washer of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Edgar G. Walker, J.), rendered August 24,2011, convicting defendant, after a jury trial, of manslaughter in the first degree andcriminal possession of a weapon in the second degree, and sentencing him to anaggregate term of 25 years, unanimously modified, as a matter of discretion in theinterest of justice, to the extent of vacating the manslaughter conviction and remandingfor a new trial on that charge, and otherwise affirmed.
As in People v Velez(131 AD3d 129 [1st Dept 2015]), reversal in the interest of justice is warranted bythe court's failure to convey to the jury, either directly or indirectly, in any part of itscharge, that an acquittal on the top count of murder in the second degree based on afinding of justification would preclude consideration of the two lesser homicide charges.While the jury may have acquitted on the top charge without relying on defendant'sjustification defense, it is nevertheless "impossible to discern whether acquittal of the topcount . . . was based on the jurors' finding of justification so as to mandateacquittal on the two lesser counts" (id. at 133; see also People v Colasuonno, 135 AD3d 418 [1st Dept2016]).
However, the charging error relating to the homicide counts does not affect theweapon possession conviction, and we do not find that any of defendant's remainingclaims warrant reversal of that conviction, or a reduction of the sentence.Concur—Tom, J.P., Acosta, Richter, Manzanet-Daniels and Gesmer, JJ.