People v. Colasuonno

CourtNew York Supreme Court Appellate Division
Citation135 A.D.3d 418,23 N.Y.S.3d 179
Decision Date05 January 2016
Parties The PEOPLE of the State of New York, Respondent, v. Robert COLASUONNO, Defendant–Appellant.

135 A.D.3d 418
23 N.Y.S.3d 179

The PEOPLE of the State of New York, Respondent,
v.
Robert COLASUONNO, Defendant–Appellant.

Supreme Court, Appellate Division, First Department, New York.

Jan. 5, 2016.


23 N.Y.S.3d 179

Robert S. Dean, Center for Appellate Litigation, New York (Jan Hoth of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (Eric C. Washer of counsel), for respondent.

FRIEDMAN, J.P., SWEENY, SAXE, MOSKOWITZ, JJ.

135 A.D.3d 419

Judgment, Supreme Court, Bronx County (James M. Kindler, J.), rendered June 17, 2014, convicting defendant, after a jury

23 N.Y.S.3d 180

trial, of attempted assault in the first degree, and sentencing him to a prison term of four years, unanimously reversed, as a matter of discretion in the interest of justice, and the matter remanded for a new trial.

The jury acquitted defendant of attempted murder in the second degree and assault in the first degree, but found him guilty of attempted first-degree assault, arising out of the stabbing of his cousin. Justification was a central issue at trial, and, because of the defect in the court's charge, it is impossible to discern whether acquittal of the top count was based on the jury's finding of justification in a manner that would mandate acquittal on the lesser count.

Considered as a whole, the court did not adequately convey the principle that, if the jury found defendant not guilty of the top count of attempted murder in the second degree on the basis of justification, it should not consider any lesser counts to the extent based on the same conduct (see People v. Velez, 131 A.D.3d 129, 134 [1st Dept.2015] ; People v. Feuer, 11 A.D.3d 633, 782 N.Y.S.2d 858 [2d Dept.2004] ; People v. Roberts, 280 A.D.2d 415, 416, 721 N.Y.S.2d 49 [1st Dept.2001], lv. denied 96 N.Y.2d 906, 730 N.Y.S.2d 804, 756 N.E.2d 92 [2001] ). As the People note, the court did instruct the jury to separately analyze the justification defense for each...

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6 practice notes
  • People v. Wah, 8503
    • United States
    • New York Supreme Court Appellate Division
    • April 23, 2019
    ...verdict sheet directed that each charge be considered in the alternative and failed to mention justification (see People v. Colasuonno , 135 A.D.3d 418, 420, 23 N.Y.S.3d 179 [1st Dept. 2016] ). In light of this improper charge, it is impossible to discern whether acquittal of the top count ......
  • People v. Akbar, 2015–08494
    • United States
    • New York Supreme Court Appellate Division
    • February 6, 2019
    ...in the second degree on the basis of justification, 169 A.D.3d 710it was not to consider any lesser counts (see People v. Colasuonno, 135 A.D.3d 418, 23 N.Y.S.3d 179 ; People v. Velez, 131 A.D.3d 129, 13 N.Y.S.3d 354 ; People v. Castro, 131 A.D.2d 771, 516 N.Y.S.2d 966 ). On this record, it......
  • People v. Braithwaite, 2015-05911. Ind. No. 2965/14.
    • United States
    • New York Supreme Court Appellate Division
    • August 30, 2017
    ...they were not to consider any lesser counts" ( People v. Palmer, 34 A.D.3d 701, 703, 826 N.Y.S.2d 77 ; see People v. Colasuonno, 135 A.D.3d 418, 23 N.Y.S.3d 179 ; People v. Velez, 131 A.D.3d 129, 13 N.Y.S.3d 354 ; People v. Castro, 131 A.D.2d 771, 516 N.Y.S.2d 966 ). Such failure constitute......
  • People v. Breckenridge, 6347
    • United States
    • New York Supreme Court Appellate Division
    • June 7, 2018
    ...578, 28 N.Y.S.3d 601 [1st Dept. 2016], lv denied 27 N.Y.3d 1138, 39 N.Y.S.3d 120, 61 N.E.3d 519 [2016] ; see also People v. Colasuonno , 135 A.D.3d 418, 419–420, 23 N.Y.S.3d 179 [1st Dept. 2016] ). The court properly found defendant fit to proceed to trial following CPL article 730 examinat......
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6 cases
  • People v. Wah, 8503
    • United States
    • New York Supreme Court Appellate Division
    • April 23, 2019
    ...verdict sheet directed that each charge be considered in the alternative and failed to mention justification (see People v. Colasuonno , 135 A.D.3d 418, 420, 23 N.Y.S.3d 179 [1st Dept. 2016] ). In light of this improper charge, it is impossible to discern whether acquittal of the top count ......
  • People v. Akbar, 2015–08494
    • United States
    • New York Supreme Court Appellate Division
    • February 6, 2019
    ...in the second degree on the basis of justification, 169 A.D.3d 710it was not to consider any lesser counts (see People v. Colasuonno, 135 A.D.3d 418, 23 N.Y.S.3d 179 ; People v. Velez, 131 A.D.3d 129, 13 N.Y.S.3d 354 ; People v. Castro, 131 A.D.2d 771, 516 N.Y.S.2d 966 ). On this record, it......
  • People v. Braithwaite, 2015-05911. Ind. No. 2965/14.
    • United States
    • New York Supreme Court Appellate Division
    • August 30, 2017
    ...they were not to consider any lesser counts" ( People v. Palmer, 34 A.D.3d 701, 703, 826 N.Y.S.2d 77 ; see People v. Colasuonno, 135 A.D.3d 418, 23 N.Y.S.3d 179 ; People v. Velez, 131 A.D.3d 129, 13 N.Y.S.3d 354 ; People v. Castro, 131 A.D.2d 771, 516 N.Y.S.2d 966 ). Such failure constitute......
  • People v. Breckenridge, 6347
    • United States
    • New York Supreme Court Appellate Division
    • June 7, 2018
    ...578, 28 N.Y.S.3d 601 [1st Dept. 2016], lv denied 27 N.Y.3d 1138, 39 N.Y.S.3d 120, 61 N.E.3d 519 [2016] ; see also People v. Colasuonno , 135 A.D.3d 418, 419–420, 23 N.Y.S.3d 179 [1st Dept. 2016] ). The court properly found defendant fit to proceed to trial following CPL article 730 examinat......
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