People v. Colasuonno
| Citation | 135 A.D.3d 418,23 N.Y.S.3d 179 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Robert COLASUONNO, Defendant–Appellant. |
| Decision Date | 05 January 2016 |
| Court | New York Supreme Court Appellate Division |
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...
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People v. Wah
...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 was base......
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People v. Akbar
...of attempted murder in the second degree on the basis of justification, it 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 reco......
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People v. Braithwaite
...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......
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