People v. Johnson
| Decision Date | 13 February 1996 |
| Parties | , 662 N.E.2d 1066 The PEOPLE of the State of New York, Respondent, v. Christopher JOHNSON, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
Edward J. Nowak, Public Defender of Monroe County, Rochester (Kathleen McDonough and Brian Shiffrin, of counsel), for appellant.
Howard R. Relin, District Attorney of Monroe County, Rochester (Elizabeth Clifford, of counsel), for respondent.
During an altercation in a parking lot, defendant shot Revaine Pratt with a shotgun, causing Pratt's death. Defendant was charged in a two-count indictment for intentional murder (Penal Law § 125.25[1] and reckless murder under circumstances evincing a depraved indifference to human life (Penal Law § 125.25[2]. For each of the murder counts, a lesser included offense was submitted to the jury--manslaughter in the first degree (Penal Law § 125.20[1] was submitted as a lesser included offense of intentional murder; manslaughter in the second degree (Penal Law § 125.15[1] was submitted as a lesser included offense of depraved mind murder.
Defendant requested that the jury be instructed to consider the intentional murder count and its lesser included offense before going on to consider the second count of depraved mind murder. In accordance with the People's request, however, the court instructed the jury to consider the charges in the following order: intentional murder under the first count; if not guilty, then depraved mind murder under the second count; if not guilty, then manslaughter in the first degree under the first count; and, if not guilty, then manslaughter in the second degree under the second count. The court instructed the jury that it should cease deliberations upon finding defendant guilty of one of the crimes submitted. The jury found defendant not guilty of intentional murder, but guilty of depraved mind murder, at which point the jury ceased its deliberations and returned with its verdict. The Appellate Division has affirmed the judgment entered on the verdict.
Counts one and two (and their respective lesser included offenses) are inconsistent counts and defendant acknowledges that the court properly instructed the jury to consider them in the alternative (see, People v. Gallagher, 69 N.Y.2d 525, 516 N.Y.S.2d 174, 508 N.E.2d 909; CPL 300.30[5] ). He contends error was committed, however, when the court instructed the jury to "blend" its consideration of the inconsistent counts by "jumping back and forth" between them.
CPL 300.30(1) defines "submission of a count of an indictment" as submission in the alternative of the count charged and any lesser included offenses. Section 300.10(4) requires the court to submit to the jury the counts and offenses to be considered, to define each offense, and to instruct the jury to render a verdict upon each count. Defendant contends that because these provisions address the "count" of the indictment as a whole for the purposes of submission of charges to the jury and rendition of the jury's verdict, the jury must consider the various greater and lesser offenses of each count as a whole. Nothing contained in article 300 of the Criminal Procedure Law, however, directs the order in which the jury should consider the various offenses submitted to it. Its provisions neither authorize nor proscribe the manner in which the jury here was instructed to consider the inconsistent greater and lesser included offenses and we conclude the jury could permissibly consider the offenses in alternating order during their deliberations.
Sanctioning the procedure used by the court in this case also avoids a possible miscarriage of justice. If the jury must consider and render a verdict on every offense submitted under the first count before considering any other count, it could find defendant guilty of manslaughter as a lesser included offense under the first count submitted, before reaching the inconsistent offense of depraved mind murder under the second count. It could be forced to convict defendant of a lesser crime than his conduct actually warranted. In the context of inconsistent counts, the jury's consideration of first the greater and then the lesser offenses properly allows the jury to consider the...
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