Tuesday, December 27, 2005

Fourth Department splits with First and Second Departments over correct "justification" charge in murder cases with manslaughter lessers

People v Bolling, __ AD3d __ [available here]

At the end of Brandon Bolling's murder trial, the trial court "submitted the two counts of murder followed by the lesser includes charges of manslaughter in the first and second degrees, and then gave an appropriate charge on the defense of justification, instructing the jury to acquit defendant of any charge it found he committed if the People failed to disprove justification beyond a reasonable doubt." (People v Bolling, __ AD3d __, ___ [4th Dept 2005].) The trial court did not further instruct the jury "that, if it found that defendant's conduct was justified with respect to the first count of the indictment, it should cease deliberating and should not consider the second count or any lesser included counts." (Id.) On appeal, defendant argued that the failure to give this further charge--that once justification was found on a top charge, the jury must acquit on all lesser counts and stop deliberating--was error requiring reversal. The Fourth Department disagreed and affirmed, explaining only that "the court's charge was a correct statement of the law when viewed in its entirety and adequately conveyed to the jury 'the correct principles of law to be applied to the case.'" (Id [citations omitted].)

As noted by the Fourth Department in its decision, the First and Second Departments have reached the opposite conclusion on this issue. Just this past year, the Second Department in People v Feuer noted:

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. Our precedent in this regard is sound and ineluctable.

(People v Feuer, 11 AD3d 633, 634 [2d Dept 2004].)

The reason for reversing in cases where the jury was not expressly told that a finding of justification on a top charge precludes a finding of guilty on a lesser charge is simple: if the jury finds defendant's actions were justified, the defense does not simply knock out an element or negate intent, but rather renders the conduct entirely lawful. Thus, where no specific charge is given, "there is no way of knowing whether the acquittal of the two murder counts was based on a finding of justification, so as to require acquittal of the two manslaughter counts as well, [and] the judgment must be reversed and the indictment dismissed [...]." (People v Roberts, 280 AD2d 415, 416 [1st Dept 2001].)

The reasoning of the First and Second Departments seems sound, and the Fourth Department's decision in Bolling does not attempt to address the reasoning adopted by the decisions from the First and Second Departments, and instead simply states that "we decline to follow them." (Bolling, __ AD3d at ___.) Whatever the Fourth Department's reasoning, the split between the Fourth Department and the First and Second Departments on this issue could not be more clear; hopefully the Court of Appeals will grant leave and settle the matter.