| People v Marcucci |
| 2018 NY Slip Op 00634 [158 AD3d 434] |
| February 1, 2018 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Roberto Marcucci, Appellant. |
Rosemary Herbert, Office of the Appellate Defender, New York (Eunice C. Lee of counsel),for appellant.
Darcel D. Clark, District Attorney, Bronx (Matthew B. White of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Megan Tallmer, J.), rendered March 28, 2013,convicting defendant, after a jury trial, of assault in the second degree, and sentencing him to aterm of seven years, unanimously reversed, on the law, and the matter remanded for a newtrial.
As in cases such as People vVelez (131 AD3d 129 [1st Dept 2015]), the court's charge failed to convey that anacquittal on the top count of attempted second-degree murder based on a finding of justificationwould preclude consideration of the remaining charges. We find that this error was not harmlessand that it warrants reversal in the interest of justice (see e.g. People v Kareem, 148 AD3d 550 [1st Dept 2017], lvdismissed 29 NY3d 1033 [2017]). We have considered and rejected the People's argumentsfor affirmance.
Since we are ordering a new trial, we find it unnecessary to reach defendant's remainingcontentions. Concur—Sweeny, J.P., Manzanet-Daniels, Webber, Kahn, Moulton, JJ.