People v. Marcucci

2018 NY Slip Op 634

Opinion

People v Marcucci (2018 NY Slip Op 00634)

People v Marcucci

2018 NY Slip Op 00634

Decided on February 1, 2018

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 1, 2018
Sweeny, J.P., Manzanet-Daniels, Webber, Kahn, Moulton, JJ.

5605 4021/10

[*1]The People of the State of New York, Respondent,

v

Roberto Marcucci, Defendant-Appellant.

Rosemary Herbert, Office of the Appellate Defender, New York (Eunice C. Lee of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Matthew B. White of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Megan Tallmer, J.), rendered March 28, 2013, convicting defendant, after a jury trial, of assault in the second degree, and sentencing him to a term of seven years, unanimously reversed, on the law, and the matter remanded for a new trial.

As in cases such as People v Velez (131 AD3d 129 [1st Dept 2015]), the court's charge failed to convey that an acquittal on the top count of attempted second-degree murder based on a finding of justification would preclude consideration of the remaining charges. We find that this error was not harmless and that it warrants reversal in the interest of justice (see e.g. People v Kareem, 148 AD3d 550 [1st Dept 2017], lv dismissed 29 NY3d 1033 [2017]). We have considered and rejected the People's arguments for affirmance.

Since we are ordering a new trial, we find it unnecessary to reach defendant's remaining contentions.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 1, 2018

CLERK