| People v Savillo |
| 2020 NY Slip Op 03928 [185 AD3d 840] |
| July 15, 2020 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Nichole Savillo, Appellant. |
Janet E. Sabel, New York, NY (David Crow and White & Case LLP [Kevin Adam,Lauri Kai, Rhys Bortignon, and David Hille], of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill,William H. Branigan, and Katherine A. Triffon of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Ronald D.Hollie, J.), rendered April 26, 2012, convicting her of assault in the second degree and criminalpossession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law and as a matter of discretion in the interestof justice, and the matter is remitted to the Supreme Court, Queens County, for a new trial beforea different Justice.
This case arises from an altercation between two groups of young people. The people in onegroup repeatedly demanded the return of a cell phone from the people in the other group, whichescalated into yelling, pushing, and shoving. The victim threatened to break the defendant's jawand threw a punch. The defendant avoided getting hit, and slashed the victim with a knife. Attrial, the Supreme Court instructed the jury on justification with respect to the charges of assaultin the first degree and assault in the second degree. The jury found the defendant not guilty ofassault in the first degree, but found her guilty of assault in the second degree and criminalpossession of a weapon in the fourth degree.
We agree with the defendant's contention that the Supreme Court's jury charge failed toadequately convey to the jury that if it found the defendant not guilty of assault in the first degreebased on justification, then it should cease deliberations and acquit her of the lesser count ofassault in the second degree. Although the defendant's contention is partially unpreserved forappellate review, we review the contention in the exercise of our interest of justice jurisdiction(see CPL 470.15 [6] [a]; Peoplev Fletcher, 166 AD3d 796, 797 [2018]; People v Velez, 131 AD3d 129, 133 [2015]; People v Feuer, 11 AD3d 633, 634[2004]).
" 'This Court has held that, in a case involving a claim of self-defense, it is error forthe trial court not to instruct the jurors that, if they find the defendant not guilty of a greatercharge on the basis of justification, they were not to consider any lesser counts' " (People v Braithwaite, 153 AD3d929, 929 [2017], quoting People vPalmer, 34 AD3d 701, 703 [2006]; see People v Castro, 131 AD2d 771 [1987]).Such failure constitutes reversible error (see People v Ross, 2 AD3d 465, 466 [2003]). "Our precedent inthis regard is sound and ineluctable. The defense of justification 'does not operate to excuse acriminal act, nor does it negate a particular element of a crime. Rather, by recognizing the use offorce to be privileged under certain circumstances, it renders such conduct entirelylawful' " (People v Feuer, 11 AD3d at 634-635, quoting People vMcManus, 67 NY2d 541, 546 [1986]).
Here, the Supreme Court's jury charge failed to adequately convey to the jury that if it foundthe defendant not guilty of assault in the first degree based on justification, then "it should simplyrender a verdict of acquittal and cease deliberation, without regard to" assault in the seconddegree and criminal possession of a weapon in the fourth degree (People v Castro, 131AD2d at 773-774; see People vDaniels, 174 AD3d 955, 958 [2019]; People v Braithwaite, 153 AD3d at 930).Thus, the court's instructions may have led the jurors to conclude that deliberation on each of thetwo counts required reconsideration of the justification defense, even if they had alreadyacquitted the defendant of assault in the first degree based on justification (see People vBraithwaite, 153 AD3d at 930). Because we cannot say with any certainty and there is noway of knowing whether the acquittal on assault in the first 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 assault in the first degree, the highest offense for which thedefendant may be retried is assault in the second degree (see id.).
In this case, the new trial must be before a different Justice. At trial, the Supreme Courtengaged in extensive questioning of witnesses, usurped the roles of the attorneys, elicited andassisted in developing facts damaging to the defense on direct examination of the People'switnesses, bolstered the witnesses' credibility, and generally created the impression that it was anadvocate for the People (see People vRamsey, 174 AD3d 651 [2019]; People v Sookdeo, 164 AD3d 1268 [2018]; People v Hinds, 160 AD3d 983[2018]; People v Robinson, 151AD3d 758 [2017]).
In light of the foregoing, we need not address the defendant's remaining contentions. Dillon,J.P., LaSalle, Iannacci and Christopher, JJ., concur.