People v Flores

People v Flores 2016 NY Slip Op 08468 Decided on December 15, 2016 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 December 15, 2016
Sweeny, J.P., Renwick, Richter, Manzanet-Daniels, Kapnick, JJ.
2502 4233/12

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

v

Jose Flores, Defendant-Appellant.

Robert S. Dean, Center for Appellate Litigation, New York (Hunter Haney of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Karen Schlossberg of counsel), for respondent.

Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered July 9, 2014, convicting defendant, after a jury trial, of manslaughter in the first degree and gang assault in the first degree, and sentencing him to an aggregate term of 15 years, unanimously reversed, as a matter of discretion in the interest of justice, the murder count dismissed with leave to re-present any appropriate charges to the grand jury, and the matter otherwise remanded for a new trial on the gang assault count.

As in cases such as People v Velez (131 AD3d 129 [1st Dept 2015]), the court's charge did not convey to the jury that an acquittal on the top count of murder in the second degree based on a finding of justification would preclude consideration of the other charges. We note that the People did not object to giving a justification charge. We find that the error in the wording of the charge was not harmless, and that it warrants reversal in the interest of justice for the reasons stated in Velez.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 15, 2016

CLERK