People v. Colasuonno

• Court: New York Supreme Court — Appellate Division
• Citation: People v. Colasuonno, 135 A.D.3d 418, 23 N.Y.S.3d 179 (N.Y. App. Div. 2016)
• Decision Date: 05 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.

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.

Judgment, Supreme Court, Bronx County (James M. Kindler, J.), rendered June 17, 2014, convicting defendant, after a jury 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 stab wound the complainant sustained, and if the jury found defendant justified in inflicting any particular injury, to acquit him of any charges based on infliction of that injury. Nevertheless, the verdict sheet directed the jury to consider each charge in the alternative, i.e., upon an acquittal of each greater offense, and neither the verdict sheet nor the court's explanation of its contents referred to justification. Furthermore, the court charged, "[I]t's an element of each of the counts ... that the defendant was not justified," which "may have led the jurors to conclude that deliberation...