People v. Feuer , 782 N.Y.S.2d 858 ( 2004 )

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Lott, J.), rendered July 13, 2000, convicting him of manslaughter in the first degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is reversed, on the law and as a matter of discretion in the interest of justice, and a new trial is ordered.

The defendant was charged with murder in the second degree (two counts), manslaughter in the first degree, and manslaughter in the second degree. At the defendant’s trial, the trial court submitted these charges to the jury. The trial court then instructed the jury on the defense of justification. Although the trial court instructed the jurors that justification was a defense to all of the counts, it did not instruct them that if they found the defendant not guilty by reason of justification as to a greater count, they were not to consider any lesser counts. The jury found the defendant not guilty of murder in the second degree on both intentional and depraved indifference theories, but found him guilty of manslaughter in the first degree.

The defendant failed to preserve for appellate review his objection to the trial court’s charge regarding justification. However, under the facts of this case, we are compelled to reach his claim in the exercise of our interest of justice jurisdiction (see CPL 470.15 [6] [a]). “The court will not exercise its discretionary power to disregard the absence of objection unless on the whole case there is a reasonable basis for the fear that injustice has been done” (People v Semione, 235 NY 44, 46 [1923]). We are satisfied that justice requires a new trial.

In this case, the justification defense was a critical component of the trial. We note that the defendant was 5’ 5” tall and weighed 135 pounds. The victim, on the other hand, was 6’ 4” tall and weighed 180 pounds. The incident occurred during a late night function that was held at an establishment called the Brooklyn Brewery. Testimony was adduced that the victim jumped on the defendant and started hitting him. According to certain witnesses, while the defendant was laying on the ground, the victim positioned himself on top of the defendant, repeatedly hitting and kicking the defendant in the face and head. The defendant testified that he believed that the victim wanted to “crack” his head open and kill him. The defendant feared that he was going to lose consciousness as a result of having his head “smashed” on the cement floor. At this point, the defendant retrieved a “Leatherman” tool from his back pocket and stabbed the victim with the tool, which was used by the defendant in his employment as a seaman.

This Court has repeatedly held that the error committed by the trial court in failing to instruct the jurors that if they found the defendant not guilty of a greater charge on the basis of justification, they were not to consider any lesser counts, is of such nature and degree so as to constitute reversible error (see People v Ross, 2 AD3d 465 [2003]; People v Roberts, 280 AD2d 415, 416 [2001]; People v Bracetty, 216 AD2d 479, 480 [1995]; People v Castro, 131 AD2d 771, 773 [1987]). Our precedent in this regard is sound and ineluctable. The defense of justification “does not operate to excuse a criminal act, nor does it negate a particular element of a crime. Rather, by recognizing the use of force to be privileged under certain circumstances, it renders such conduct entirely lawful” (People v McManus, 67 NY2d 541, 546 [1986]).

Contrary to the dissent’s assertion that the jury rejected the defense of justification, the record is silent as to the basis for the jury’s acquittal on the murder counts. Since we cannot say with any certainty and there is no way of knowing whether the acquittal on the murder counts was based on a finding of justification, a new trial is necessary. However, the defendant’s acquittal of the murder counts precludes his retrial on those charges (see People v Castro, supra at 774). Thus, the highest offense for which the defendant may be retried is manslaughter in the first degree (see People v Castro, supra).

Moreover, the trial court erred in admitting a photograph of the victim and his girlfriend (see People v Donohue, 229 AD2d 396, 398 [1996]), and in improperly permitting the prosecution, during the cross-examination of the defendant, to ask him to demonstrate or re-enact the altercation with the victim. A trial court “must be alert to the danger that, when ill-designed or not properly relevant to the point at issue, instead of being helpful [demonstrations] may serve but to mislead, confuse, divert or otherwise prejudice the purposes of the trial” (People v Acevedo, 40 NY2d 701, 704 [1976]). Here, the value of the demonstration was outweighed by its prejudice to the defendant. We note that the defense counsel objected to the admission of the victim’s photograph and the demonstration by the defendant.

In light of the foregoing, we do not reach the defendant’s remaining contentions. Luciano, Mastro and Rivera, JJ., concur.