Argued May 14, 2002.
June 18, 2002.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Hanophy, J.), rendered April 12, 2000, convicting him of manslaughter in the first degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.
Andrew C. Fine, New York, N.Y. (John Schoeffel of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Jeanette Lifschitz, and Ushir Pandit of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., MYRIAM J. ALTMAN, HOWARD MILLER, BARRY A. COZIER, JJ.
ORDERED that the judgment is modified, on the law, by (1) vacating the conviction of manslaughter in the first degree, vacating the sentence imposed thereon, and dismissing that count of the indictment without prejudice to the People to re-present any appropriate charges to another Grand Jury (see People v. Beslanovics, 57 N.Y.2d 726), and (2) vacating the conviction of criminal possession of a weapon in the second degree, and a new trial is ordered on that count of the indictment.
While a court is not under an obligation to explain the contentions of both parties or outline inconsistencies in the evidence (see People v. Saunders, 64 N.Y.2d 665; People v. Rogers, 287 A.D.2d 524; People v. Gayle, 281 A.D.2d 490), its charge must instruct the jury on the relevant principles of law as they relate to the facts of the case. Here, the defendant conceded that the shooting victim was an innocent bystander, and his sole contention was that he was justified in firing his gun to ward off an attack by a third person armed with a champagne bottle. Even though the trial court's justification charge was taken nearly verbatim from the model charge, this alone was insufficient to insure that the jury was informed of all of the relevant principles of law (see CPL 300.10; People v. Andujas, 79 N.Y.2d 113; People v. Spradley, 249 A.D.2d 339; see also People v. Watts, 57 N.Y.2d 299; People v. Torre, 42 N.Y.2d 1036; People v. Simmons, 206 A.D.2d 550; People v. Primus, 178 A.D.2d 565; People v. McGee, 173 A.D.2d 861; People v. Ward, 162 A.D.2d 566). The test to be used is "whether the jury, hearing the whole charge, would gather from its language the correct rules which should be applied in arriving at decision" (People v. Ladd, 89 N.Y.2d 893, 895: People v. Russell, 266 N.Y. 147; see also People v. Walton, 220 A.D.2d 548; Cea v. Freed, 178 A.D.2d 397).
The law regarding justification is well settled. A justification defense is applicable to any use of force, even if that use has unintended consequences (see People v. Magliato, 68 N.Y.2d 24; People v. Giamanco, 188 A.D.2d 547; People v. Johnson, 125 A.D.2d 493) . In that regard, a justification charge is available to a defendant even where an innocent bystander is harmed (see People v. Sierra, 231 A.D.2d 907; People v. Reid, 176 A.D.2d 828; People v. Morris, 109 A.D.2d 413; see also People v. Gutierrez, 105 A.D.2d 754) . A court is obliged to give a justification charge whenever the evidence, reasonably viewed in the light most favorable to the defendant, supports the charge (see People v. Cox, 92 N.Y.2d 1002; People v. Padgett, 60 N.Y.2d 142; People v. Torres, 288 A.D.2d 406).
The relevant portion of the model charge on justification reads that "[t]he first duty of the jury when a defense of self-defense is raised is to determine who was the initial aggressor, the victim or the defendant" (emphasis supplied) (1 CJI [NY] 35.15[a], at 868). Here, the court's reading of the model charge effectively precluded the jury from considering whether the defendant was justified in acting in order to defend himself against a third person wielding a champagne bottle (see People v. Morgan, 290 A.D.2d 566). Moreover, this error was not harmless, since the defendant's case completely rested on his contention that he was justified in responding to the threat of deadly force from the third person (see People v. Wesley, 76 N.Y.2d 555; People v. Morgan, supra).
Since the jury acquitted the defendant of the murder charges, this court is without the power to order a new trial on the lesser-included offenses (see People v. Gonzalez, 61 N.Y.2d 633; People v. Beslanovics, supra; People v. Flores, 276 A.D.2d 710). Therefore, the conviction of manslaughter in the first degree must be vacated, without prejudice to the People to re-present any appropriate charges to another Grand Jury.
The defendant was also deprived of a fair trial by the prosecutor's 31 references to the defendant's highly prejudicial nickname, "Homicide" (see People v. Santiago, 255 A.D.2d 63; People v. Ramos, 139 A.D.2d 775; see also, People v. Allweiss, 48 N.Y.2d 40; People v. Molineux, 168 N.Y. 264; People v. Ross, 227 A.D.2d 651) . In that regard, he was deprived of the effective assistance of counsel by, among other things, his attorney's failure to object to any of these references (see Murray v. Carrier, 477 U.S. 478; United States v. Cronic, 466 U.S. 648; People v. Delarosa, 287 A.D.2d 735; compare People v. Tonge, 93 N.Y.2d 838; People v. Hobot, 84 N.Y.2d 1021; People v. Flores, 84 N.Y.2d 184; People v. Baldi, 54 N.Y.2d 137; People v. Brown, 266 A.D.2d 838). Therefore, the defendant is entitled to a new trial on the count of the indictment charging criminal possession of a weapon in the second degree.
SANTUCCI, J.P., ALTMAN, H. MILLER and COZIER, JJ., concur.