People v. Herrera, Appeal No. 12929

CourtNew York Supreme Court Appellate Division
Writing for the CourtManzanet–Daniels, J.
Citation193 A.D.3d 189,142 N.Y.S.3d 59
Parties The PEOPLE of the State of New York, Respondent, v. Karilie HERRERA, Defendant-Appellant.
Decision Date23 February 2021
Docket NumberCase No. 2017-02109,Index No. 1684/15,Appeal No. 12929

193 A.D.3d 189
142 N.Y.S.3d 59

The PEOPLE of the State of New York, Respondent,
v.
Karilie HERRERA, Defendant-Appellant.

Appeal No. 12929
Index No. 1684/15
Case No. 2017-02109

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

ENTERED February 23, 2021


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

Cyrus R. Vance, Jr., District Attorney, New York (Philip Vyse Tisne and Patrick J. Hynes of counsel), for respondent.

Dianne T. Renwick, J.P., Sallie Manzanet–Daniels, Barbara R. Kapnick, Cynthia S. Kern, Tanya R. Kennedy, JJ.

Manzanet–Daniels, J.

193 A.D.3d 190

The trial court's instructions failed to convey that an acquittal of the greater charge of attempted assault in the first degree on the basis of justification precluded consideration of the lesser included offense of second-degree assault. Because we cannot know the theory upon which the jury relied in acquitting defendant of attempted assault in the first degree, the court's failure to give the required stop deliberation charge requires reversal in the interest of justice.

In defense counsel's opening statement, she explained that the defense was justification, that defendant was "trying to defend herself." Counsel emphasized, "this was truly a case of self-defense," and that "the People will not be able to disprove beyond a reasonable doubt the defense of justification."

Defendant and the complainant Neville had been having a feud on social media over disparaging remarks defendant had made about the father of Neville's children. In the early morning hours of April 13, 2015, defendant encountered Neville, Neville's sister Elizabeth, and their cousin Fantasia outside of a neighborhood restaurant. Defendant screamed at the sisters as they were leaving the restaurant. "[F]ed up" with defendant and "tired of her bullying," Neville turned and "went at"

142 N.Y.S.3d 60

defendant. A fight ensued between the two women. Neville grabbed defendant's hair and defendant warned that she was going to "cut" Neville if she didn't let go. Neville cut defendant with what Neville believed to be a piece of broken glass, which was lying "everywhere," according to Neville. According to defendant, at some point in the fight Fantasia hit her in the head with a shoe and then with a liquor bottle, which Fantasia had broken on the ground. Defendant cut her leg on broken glass. She testified that she thought the fight "was never going to end," and that she was just "trying to defend [herself] the whole

193 A.D.3d 191

time." She couldn't leave because "[e]very time [she] thought [she] was going to let loose and separate," one of the three would come and attack her. She testified that she felt as if she was "fighting for [her] life."

In defense counsel's closing, she noted that it was the People's burden to disprove the defense of justification or "self-defense," and cited defendant's testimony that she was "fighting for [her] life." However, she did not focus on justification to the same extent as she did in the opening statement.

Following summations, the trial court chided defense counsel for closing "in a fashion that's opposite than what [she] opened on," but nonetheless indicated that it would give a deadly physical force justification charge as to counts one and two, alleging attempted first-degree assault and second-degree assault, respectively.

The trial court instructed the jury that defendant had raised justification as a defense with respect to counts one and two and stated that the People were required to prove three elements to establish defendant's guilt on count one, including "that defendant was not justified." With respect to count two, the court stated that defendant had also raised the defense of justification. The court stated that as an element of count two the People were required to prove beyond a reasonable doubt that "the defendant was not justified."

During deliberations, the jury submitted a note asking, "[w]e would like to understand why the defendant is pleading self-defense in the first two counts." The court instructed the jury that it was up to them to determine whether defendant had committed the acts alleged in counts one and two and "it is also for [the jury] to determine whether [defendant] was justified." Several hours later, the jury sent another note requesting the legal definitions of counts one and two. The court re-read its instructions, repeating that the justification defense "applie[d] to Count 1 and Count 2." The jury subsequently returned a verdict of not guilty on count one and guilty on count two.

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3 practice notes
  • Simpson v. Bell, 18-cv-1378 (ERK)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • August 27, 2021
    ...no longer applied the rule in Velez ), leave denied 35 N.Y.3d 1114, 133 N.Y.S.3d 530, 158 N.E.3d 547 (2020) ; but see People v. Herrera 193 A.D.3d 189, 192–93 & n.*, 142 N.Y.S.3d 59 (1st Dep't 2021) (reversing conviction in the interest of justice based on failure to give stop-deliberations......
  • Simpson v. Bell, 18-cv-1378 (ERK)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • August 27, 2021
    ...that it had “changed course” and no longer applied the rule in Velez), leave denied 35 N.Y.3d 1114 (2020); but see People v. Herrera 193 A.D.3d 189, 192-93 & n.* (1st Dep't 2021) (reversing conviction in the interest of justice based on failure to give stop-deliberations instruction under V......
  • People v. Herrera, 2021-97729
    • United States
    • New York Court of Appeals
    • May 28, 2021
    ...MOTION DECISION DIFIORE, CH. J. JUDGE Disposition: Applications for Criminal Leave to appeal dismissed Decision Reported Below: 1st Dept: 193 A.D.3d 189 (NY) ...
3 cases
  • Simpson v. Bell, 18-cv-1378 (ERK)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • August 27, 2021
    ...no longer applied the rule in Velez ), leave denied 35 N.Y.3d 1114, 133 N.Y.S.3d 530, 158 N.E.3d 547 (2020) ; but see People v. Herrera 193 A.D.3d 189, 192–93 & n.*, 142 N.Y.S.3d 59 (1st Dep't 2021) (reversing conviction in the interest of justice based on failure to give stop-deliberations......
  • Simpson v. Bell, 18-cv-1378 (ERK)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • August 27, 2021
    ...that it had “changed course” and no longer applied the rule in Velez), leave denied 35 N.Y.3d 1114 (2020); but see People v. Herrera 193 A.D.3d 189, 192-93 & n.* (1st Dep't 2021) (reversing conviction in the interest of justice based on failure to give stop-deliberations instruction under V......
  • People v. Herrera, 2021-97729
    • United States
    • New York Court of Appeals
    • May 28, 2021
    ...MOTION DECISION DIFIORE, CH. J. JUDGE Disposition: Applications for Criminal Leave to appeal dismissed Decision Reported Below: 1st Dept: 193 A.D.3d 189 (NY) ...

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