| People v Rosario |
| 2019 NY Slip Op 01432 [169 AD3d 1066] |
| February 27, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York, Respondent, v AngelRosario, Appellant. |
Paul Skip Laisure, New York, NY (Hannah Zhao of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Rhea A. Grob, and Sarah G.Pitts of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (William M.Harrington, J.), rendered October 30, 2015, convicting him of assault in the first degree and recklessendangerment in the first degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, as a matter of discretion in the interest of justice, and a newtrial is ordered.
This case arises from an altercation between the defendant and his cousin inside a house. Duringthe altercation, the defendant stabbed the cousin several times in the head, neck, and chest, and swunga knife at the cousin's 16-year-old daughter when she tried to intervene. At trial, the Supreme Courtinstructed the jury on justification with respect to the charges of attempted murder in the second degree,assault in the first degree, and reckless endangerment in the first degree. The jury found the defendantguilty of assault in the first degree and reckless endangerment in the first degree, but found thedefendant not guilty of attempted murder in the second degree.
The defendant's contention that the evidence was legally insufficient to establish his guilt and todisprove his defense of justification beyond a reasonable doubt is unpreserved for appellate review(see CPL 470.05 [2]; People vHawkins, 11 NY3d 484, 492 [2008]; People v Hang Bin Li, 154 AD3d 960, 961 [2017]). In any event,viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60NY2d 620, 621 [1983]), we find that it was legally sufficient to establish the defendant's guilt of assaultin the first degree and reckless endangerment in the first degree, and to disprove the justificationdefense, beyond a reasonable doubt (see Penal Law § 35.15 [1]). Moreover, infulfilling our responsibility to conduct an independent review of the weight of the evidence (seeCPL 470.15 [5]; People v Danielson, 9NY3d 342 [2007]), we nevertheless accord great deference to the jury's opportunity to view thewitnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410[2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, weare satisfied that the jury's rejection of the defendant's justification defense and the verdict of guilt werenot against the weight of the evidence (seePeople v Romero, 7 NY3d 633 [2006]).
Nevertheless, we agree with the defendant's contention that the Supreme Court's jury charge inconjunction with the verdict sheet failed to adequately convey to the jury that if it found the defendantnot guilty of attempted murder in the second degree based on justification, then it should ceasedeliberations and acquit him of the lesser counts of assault in the first degree and reckless endangermentin the first degree. Although the defendant's contention is partially unpreserved for appellate review, wereview the contention in the exercise of our interest of justice jurisdiction (see CPL 470.15 [6][a]; People v Fletcher, 166 AD3d796, 797 [2018]; People v Velez,131 AD3d 129, 133 [2015]; People vFeuer, 11 AD3d 633, 634 [2004]).
" '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 the basisof justification, they were not to consider any lesser counts' " (People v Braithwaite, 153 AD3d 929,929 [2017], quoting People v Palmer, 34AD3d 701, 703 [2006]; see People v Castro, 131 AD2d 771 [1987]). Such failureconstitutes reversible error (see People vRoss, 2 AD3d 465, 466 [2003]). "Our precedent in this regard is sound and ineluctable. Thedefense of justification 'does not operate to excuse a criminal act, nor does it negate a particularelement of a crime. Rather, by recognizing the use of force to be privileged under certain circumstances,it renders such conduct entirely lawful' " (People v Feuer, 11 AD3d at 634-635,quoting People v McManus, 67 NY2d 541, 546 [1986]).
Here, the Supreme Court's jury charge in conjunction with the verdict sheet failed to adequatelyconvey to the jury that if it found the defendant not guilty of attempted murder in the second degreebased on justification, then "it should simply render a verdict of acquittal and cease deliberation, withoutregard to" assault in the first degree and reckless endangerment in the first degree (People vCastro, 131 AD2d at 773-774; see People v Braithwaite, 153 AD3d at 930). Thus, thecourt's instructions, together with the verdict sheet, may have led the jurors to conclude that deliberationon each of the three counts required reconsideration of the justification defense, even if they had alreadyacquitted the defendant of attempted murder in the second degree based on justification (see Peoplev Braithwaite, 153 AD3d at 930). Since we cannot say with any certainty and there is no way ofknowing whether the acquittal on attempted murder in the second degree was based on a finding ofjustification, a new trial is necessary (see People v Feuer, 11 AD3d at 635). In light of thedefendant's acquittal on the charge of attempted murder in the second degree, the highest offense forwhich the defendant may be retried is assault in the first degree (see id.).
In light of the foregoing, we need not address the defendant's remaining contention. Mastro, J.P.,Austin, Miller and Maltese, JJ., concur.