Opinion
5605 Ind. 4021/10
02-01-2018
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.
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.
Sweeny, J.P., Manzanet–Daniels, Webber, Kahn, Moulton, JJ.
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 A.D.3d 129, 13 N.Y.S.3d 354 [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 A.D.3d 550, 50 N.Y.S.3d 58 [1st Dept. 2017], lv dismissed 29 N.Y.3d 1033, 62 N.Y.S.3d 302, 84 N.E.3d 974 [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.