| People v Braithwaite |
| 2017 NY Slip Op 06369 [153 AD3d 929] |
| August 30, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Jason Braithwaite, Appellant. |
Lynn W. L. Fahey, New York, NY (Hannah Zhao of counsel), for appellant.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Ann Bordley,Jordan Cerruti, and Rebecca Visgaitis of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Tomei, J.),rendered June 29, 2015, convicting him of assault in the second degree, upon a jury verdict, andimposing sentence.
Ordered that the judgment is reversed, on the law, and a new trial is ordered.
The defendant slashed the complainant multiple times across the chest and neck with a"Karambit" knife during a physical altercation on a Brooklyn street. He was charged with, interalia, assault in the first degree, attempted assault in the first degree, and assault in the seconddegree. At trial, the defendant asserted a justification defense. The jury acquitted the defendant ofassault in the first degree and attempted assault in the first degree, but found him guilty of assaultin the second degree. The defendant appeals.
"This Court has held that, in a case involving a claim of self-defense, it is error for the trialcourt not to instruct the jurors that, if they find the defendant not guilty of a greater charge on thebasis of justification, they were not to consider any lesser counts" (People v Palmer, 34 AD3d 701,703 [2006]; see People vColasuonno, 135 AD3d 418 [2016]; People v Velez, 131 AD3d 129 [2015]; People v Castro,131 AD2d 771 [1987]). Such failure constitutes reversible error (see People v Ross, 2 AD3d 465,466 [2003]). "Our precedent in this regard is sound and ineluctable. The defense of justification'does not operate to excuse a criminal act, nor does it negate a particular element of a crime.Rather, by recognizing the use of force to be privileged under certain circumstances, it renderssuch conduct entirely lawful' " (People v Feuer, 11 AD3d 633, 634-635 [2004], quoting Peoplev McManus, 67 NY2d 541, 546 [1986]).
Here, the Supreme Court properly instructed the jury to consider justification with respect toeach of the three counts submitted to the jury and that it must find the defendant not guilty on allcounts if it found that the People had failed to disprove the defendant's justification defense.However, when instructing the jury on the verdict sheet, the court did not instruct that, if the juryfound the defendant not guilty of a greater charge on the basis of justification, it was not toconsider any lesser count, and the verdict sheet was inconsistent with that principle (see People v Colasuonno, 135 AD3d418 [2016]; People v Velez,131 AD3d 129 [2015]; People vPalmer, 34 AD3d 701 [2006]; People v Castro, [*2]131 AD2d 771 [1987]). In particular, the verdict sheet, which madeno reference to justification, instructed the jury that, if it found the defendant not guilty on countone or count two, the jury must "deliberate next on" the following count. Similarly, in explainingthe verdict sheet, the court instructed the jury, if the verdict on count one or count two was notguilty, to "go on" and to "deliberate" on the next count, without explaining that they should notdeliberate on any lesser-included count if the jury found the defendant not guilty based upon thePeople's failure to disprove the defense of justification. Thus, the court's instructions, togetherwith the verdict sheet, may have led the jurors to conclude that deliberation on each crimerequired reconsideration of the justification defense, even if they had already acquitted thedefendant of the previous count based on justification. Accordingly, the judgment of convictionmust be reversed, and a new trial ordered (see People v Colasuonno, 135 AD3d 418 [2016]; People v Velez, 131 AD3d 129[2015]; People v Roberts, 280 AD2d 415 [2001]; People v Castro, 131 AD2d 771[1987]; cf. People v Campbell, 160 AD2d 717 [1990]).
In light of our determination, we need not reach the defendant's remaining contentions.Austin, J.P., Hinds-Radix, Duffy and Connolly, JJ., concur.