PEOPLE v. WITHERSPOON (2026)

The Defendant moves pursuant to CPL 330.30 (1) to vacate his conviction for one count of Assault in the First Degree and one count of Assault in the Second Degree because the court refused the jury's request for written instructions on a complex justification charge involving two victims, a charge which the court opined on the record would be “incomprehensible” for the jury to understand without receiving the charge in writing. The Defendant's motion is denied.

The court's determination not to provide the written charge was based on the absence of statutory authority to provide it and the prosecution's refusal to consent to the provision of a written charge. The Defendant's motion thus seeks to reverse his conviction based on the argument that the Criminal Procedure Law statute which does not authorize the court to provide written instructions (CPL 310.30) is an unconstitutional deprivation of substantive due process as applied to him. In the court's view, under different facts, this argument might be the basis for a dismissal. In this case, however, the court believed a dismissal of the indictment was not warranted.

Brief Factual Outline

This case concerned allegations that the defendant stabbed two victims, brothers, during an early morning altercation involving two groups of people who had congregated near a food truck and nightclub in the Inwood neighborhood of Manhattan. The Defendant and his sister and friends had arrived at the location on a “party bus” which had been hired to take them to clubs. The origins of the dispute were not completely clear but included a number of related altercations. The Defendant mistakenly believed someone had taken his cell phone. There was a heated argument between the Defendant's sister and another woman which became physical when the Defendant's sister began striking the woman. Multiple participants in the disputes consumed alcohol. The first victim drove his car onto a sidewalk which some in the party bus believed was too close to others. Three people from the party bus then hit the first victim and a fist fight between the group ensued. As the people on the party bus walked away, the first victim's child's mother followed, yelling at them and the Defendant's sister joined by others then began striking her. The first victim then intervened, striking or trying to physically remove the Defendant's sister from the fight and the Defendant stabbed him. The second victim then struck another person, who the Defendant described as one of his friends, and the Defendant stabbed him.

This court presided over the Defendant's jury trial and at the Defendant's request and with the People's consent, the court charged the jury on the defense of justification with respect to the use of deadly physical force for all the counts. The defendant was acquitted of two counts of Attempted Murder in the Second Degree (one count concerning each victim). He was convicted of one count of Assault in the First Degree regarding the first victim and one count of Assault in the Second Degree regarding the second victim. The jury was unable to reach a unanimous verdict on one count charging the Defendant with Attempted Assault in the First Degree with respect to the second victim.¹ It was clear during the trial that the first victim suffered serious physical injury and the second victim suffered physical injury, both from stab wounds inflicted by the Defendant.

The Defendant testified and said he believed the two people he stabbed were using or threatening the use of weapons. There was limited corroborating evidence, however, outside the Defendant's testimony, which supported that. The entire altercation involving the stabbings, which spanned only a number of seconds, was recorded on video of moderately good quality. There were multiple people moving rapidly during the altercations, however, the view of some actions was obstructed and the dispute occurred at night although the area was well lit. All of this made determining the precise actions of each person challenging. Mr. Witherspoon was 23 years old at the time of these crimes and is 30 years old now. These are his only criminal convictions.

The Jury's Request for Written Instructions

During deliberations, the jury requested “legal instructions, the criteria or elements for each charge in writing”. The court interpreted this as a request for written instructions on the elements of the charges (which would include justification) rather than a request for a written copy of the entire charge. Defense counsel agreed and consented to providing the jury with written legal instructions. The People said they would “typically” object to providing instructions in writing but wanted to think about it “because it [apparently referring to the justification charge] is so convoluted” and “justification is so long and involved”.² The prosecutor said she wanted to check with a supervisor. After a brief recess, the prosecutor said she had been “asked to object” [and did object]. The court opined that without written instructions, the justification charge was “incomprehensible”, elaborating: “There is no way they can understand this. There's no way”.³

The court asked the prosecutor why she objected. The prosecutor explained that regarding her discussion with supervisors: “I believe, because we talked about this as it applies to other cases, is that the legal instructions are dense and contain a series of and/ors that become difficult for the jurors to navigate as they read through them”.⁴ The court then noted that these difficulties would not be mitigated by refusing to give jurors written instructions as they had requested and the prosecutor repeated that it was the People's position that written instructions should not be provided. The defense asserted that: “clearly the jury is looking for this particular tool to help them decipher what's going on and render a fair verdict. And then not giving it to them, infringes on my client's right to a fair trial”.⁵ Defense counsel did not argue that the statute not authorizing the court to provide written instructions was an unconstitutional deprivation of substantive due process as applied to him.

After telling the jury it was not permitted to provide the charge in writing, the court then asked the jury to write a note about whether they wanted the charge to be read again. The jury responded that they “request the definition of each charge, the three elements we have to prove per charge, definition of injury, serious physical injury, and physical injury”.⁶ Later, they sent another note asking for “instructions for count four [the one count the jury did not reach a unanimous verdict on], definition of physical and serious physical injury”.⁷ The jury did not write any further notes prior to sending one which appeared to indicate they had reached a partial verdict.

The Difficulty of Understanding the Justification Defense

The statutory defense of justification which applied in this case is contained in section 35.15 of the Penal Law entitled “Justification: use of physical force in defense of a person”. That statutory defense has been further refined by extensive appellate case law. The statute and controlling case law are then reflected in the standard criminal pattern jury instructions written by a committee of judges and retired judges which courts generally use to instruct juries (the “CJI”).⁸ In this case, the court provided the standard CJI instructions with the optional provisos it determined applied to this case. The problem with the justification charge, however, is that it is extraordinarily complex and may be difficult for jurors to follow, at least without having the charge in writing. In this case, here is how the charge was given.⁹

First, the Basic Rules of the Road

The jury was first instructed on what was likely a counter-intuitive proposition: that even though the justification charge is also referred to as “self-defense”, and even though the primary evidence of self-defense was provided in this case, as it likely is in most others, by the testimony of the defendant, the defendant was not required to prove that he acted in self-defense. Rather, the court instructed the jury, the People were required to prove beyond a reasonable doubt that the Defendant did not act in self-defense. To describe the proposition in the opposite formulation, if the People did not prove beyond a reasonable doubt that the Defendant did not act in self-defense, he would have to be acquitted.

Second, came an even more difficult concept. The justification charge in this case applied to all five counts. But there was also a special rule about whether the charge applied to each count which depended on how the jury determined whether it applied to other counts. The additional complication here is that there were two victims. So this rule then applied separately to each victim. This rule provides that if the jury found that the People did not prove beyond a reasonable doubt that the defendant was not justified with respect to the first victim under the first count which applied to that victim, Attempted Murder in the Second Degree, then they would also have to find the Defendant not guilty of the additional count which applied to this first victim, in this case the additional count of Assault in the First Degree. The same rule applied to the second victim. If the jury found that the People did not prove beyond a reasonable doubt that the Defendant was not justified with respect to the first count which applied to the second victim (this was now count three of the five counts the jury was provided) then they would also have to find the Defendant not guilty of the remaining two counts which applied to the second victim (counts four and five). Continuing, if the jury found the People did not prove beyond a reasonable doubt that the Defendant was not justified with respect to the second count concerning the second victim (count 4) then they would also be required to find the Defendant not guilty on the remaining count which applied to the second victim (count 5).

The jury also had to understand, however, that even if they found the Defendant was not justified, they could still find the Defendant not guilty on any count. They might determine the People proved the Defendant was not justified beyond a reasonable doubt but that one or more of the remaining elements of any of the five counts had not been proven beyond a reasonable doubt.

The complexity of this rule, however, does not end there. The jury was then instructed that if they found the Defendant not guilty of the first count of the indictment with respect to the first victim, for some reason other than the fact that the People did not prove beyond a reasonable doubt that the Defendant was not justified, then they were not required to acquit the Defendant with respect to the first victim on the remaining count. (Are you all with me?) That is, under this circumstance, the jury would then proceed to consider the second count (Assault in the First Degree) and consider whether the Defendant was guilty or not guilty. Left unanswered, however, was another possible scenario. Suppose the jury found the Defendant not guilty of count one regarding the first victim for a reason other than that the People had failed to prove beyond a reasonable doubt that the Defendant was not justified? Suppose further, however, that in considering the Assault in the First Degre charge, they came to a different conclusion on justification regarding that count, that is, that the People did not prove beyond a reasonable doubt that the Defendant was not justified. The standard pattern instructions do not instruct the jury that they are prohibited from considering self-defense on the second charge because they found the absence of self-defense on the first charge. The law presumes that is not possible. But there is nothing to prevent the jury from reaching the opposite conclusion. Nor do verdicts provide any information about whether that was done.

This rule would then be applied, again, to the second victim, in the same way it applied to the first victim except that for the second victim there were three counts, thus the formulation might have to be applied twice, to the first count applicable to the second victim and the second count applicable to the second victim. With respect to this rule (but not any others) the jury was given written guidance in a verdict sheet which outlined how the acquittal of the Defendant on some charges did or did not require acquittal on other charges. Both parties consented to the written material contained in the verdict sheet. No other provisions of the charge, however, were ever provided to the jury in writing. With respect to evaluating the evidence concerning each victim separately, moreover, the two assaults were separated by seconds, making the analysis even more challenging. Had the court done what the People wanted, that is, to submit two additional counts to the jury concerning the identical conduct, Gang Assault in the First Degree and Attempted Gang Assault in the First Degree, these issues would have become even more complex. Notice that all the foregoing instructions provided to the jury did not even begin to explain what justification was.

The Basic Self-Defense Rule

The jury must first understand the difference between the term: “deadly physical force” and the term “physical force”. The jury was told that the term “deadly physical force” meant “physical force which, under the circumstances in which it is used, is readily capable of causing death or other serious physical injury. Serious physical injury means impairment of a person's physical condition which creates a substantial risk of death, or which cause death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ”. The term “physical force” is not defined.

The jury was instructed that the use of deadly physical force (the kind of force the court determined the Defendant had used in this case) was justified “when, and to the extent that” the Defendant “reasonably believed” that to be necessary to defend himself or someone else from what he “reasonably believed” to be “the use or imminent use of deadly physical force” by the individual he was charged with attacking. The court then went on to outline an instruction on the “subjective” test and then the “objective” test for the use of deadly physical force. The jury was also told it would not matter if the defendant was mistaken in a belief, provided it was both honestly held and reasonable.

The Concept of the “Initial Aggressor”

The jury was next instructed on the concept of the “initial aggressor” and told that the Defendant would not be justified if he was the initial aggressor. They were then told that the “initial aggressor” was “the first person who uses, or threatens the imminent use of, deadly physical force”. From there, however, this concept also became much more complicated.

The jury was next told that, [despite what they had just been told] the Defendant could be the initial aggressor and still act in self-defense under some circumstances. They were told that the striking of the first blow “does not necessarily determine who was the initial aggressor”. [Recall that seconds earlier, they were told that the initial aggressor was “the first person who uses, or threatens the imminent use of, deadly physical force”]. They were then instructed that “A person who reasonably believes that another is about to use deadly physical force upon him or another person need not wait until he or that other person is struck or wounded. He may, in such circumstances, be the first to use deadly physical force, so long as he reasonably believed it was about to be used against him or another person. He is then not considered to be the initial aggressor, even though he strikes the first blow or inflicts the first wound” (emphasis added). Notice here also that this was the second time the jury was directed to understand and correctly apply the dual “subjective” and “objective” tests regarding the use of deadly physical force, a construct most jurors had likely never encountered before.

It was further not that simple in this case, however. That is because the evidence allowed the jury to conclude that the Defendant responded to the use of physical force, with the use of deadly physical force, which was not permitted. Hence a further instruction was required. The jury was instructed: “If a person initially uses or threatens the use of non-deadly physical force [a term not defined] against another who, in response, uses or threatens the use of deadly physical force, then that person who first used or threatened the imminent use of deadly physical force is the initial aggressor”. This rule would then have to be applied again, to two different victims, potentially resulting in two different conclusions in encounters separated by seconds. Since this was a case in which the defense argued that the defendant was justified because he acted to defend others (his sister with respect to the first victim and his friend with respect to the second victim) an additional instruction was then given:

If a person intervenes in a conflict in defense of another, that person is an initial aggressor only if he somehow initiated or participated in the initiation of the original use of deadly physical force or the threat to use it, or reasonably should have known that the person he was defending initiated it. On the other hand, if he neither initiated nor participated in the initiation of physical force, or the threat to use it, and had no reason to know who initiated it, then he is not the initial aggressor. (emphasis added).10

The court has emphasized the word “physical force” here because it has concluded the term it provided as “physical force” should have been “deadly physical force”. The CJI gives judges the option to use either the term “physical force” or the term “deadly physical force” here. Neither the parties nor the court noticed this error during the trial. Both parties even missed this in their extensive written submissions on this motion.

In this instance, as the court instructed the jury, the defendant in this case might not have been found to be the “initial aggressor”. The jury apparently found in this case that in response to ordinary physical force, the defendant then used deadly physical force and so was not justified. But the mistaken instruction as the court gave it appears to say that if the defendant was not involved in the initiation of simple “physical force” [which, in the court's view, was amply demonstrated by the evidence in this case] he would not be the initial aggressor and have to be acquitted. Are you all still following this?

Note this other completely new and confusing issue which is raised by this instruction, even presuming it was correctly given. Here the jury is not asked to assess the actions of the victims. They are rather asked, for the first time, to assess the actions of the two people the defendant was defending. But the jury is not asked whether the defendant believed the persons he was defending used or threatened the use of deadly physical force. In fact, under this instruction, the Defendant's belief about the actions of the people he was defending is irrelevant. The jury is rather asked whether the defendant “reasonably should have known” that the persons he was defending initiated the use of deadly physical force. This is a negligence standard, which lawyers and judges might understand might be equivalent to one half of the mental state the jury had been asked to use twice before in assessing the victims' actions, that is, whether a reasonable person would have believed the victim used or would imminently use deadly physical force. The “should have known” formulation, however, is linguistically different than the “reasonable belief” standard.

But the confusion doesn't end there. Rather, an additional variation on the new mens rea negligence standard is added in the final sentence with respect to the Defendant's perception of the actions of a person he is defending. Rather than the formulation “reasonably should have known”, the jury is told the defendant would not be the initial aggressor if he had “no reason to know who” initiated the use of deadly physical force. Here, apparently, if there is any reason to know the person the defendant was defending used deadly physical force, the defendant would be the initial aggressor. This final mental state appears to have been intended to be the mirror image of the earlier mens rea, that is, if a person had no reason to know something, then presumably that would also be something the person should not have known. The jury would have to understand all these permutations and determine the Defendant's perceptions about two groups of two people: the Defendant's sister and the first victim and then separately the Defendant's friend and the second victim.

Finally, the instruction provided that “The defendant would not be justified if he knew that he could with complete safety to himself and others avoid the necessity of using deadly physical force by retreating.” Here, in the court's view, while a duty to retreat instruction was appropriate and not objected to be either party, it did not accurately reflect an important factual issue in this case. The evidence indicated that the Defendant reasonably believed both his sister and his friend were being assaulted and, in response to that, used deadly physical force. By retreating, however, there is no evidence the Defendant's sister and his friend would be in “complete safety”. They would rather continue to be assaulted, albeit using physical rather than deadly physical force. But it is also difficult to see how this instruction might be modified to fit a case like this. Should the instruction provide that the defendant would not have a duty to retreat in a case like this but did have a duty to use only physical force, rather than deadly physical force?

Numerous academic studies have documented the difficulties jurors have in understanding legal instructions and questioned the implicit premise in appellate rulings that such comprehension exists.¹¹ New York's justification charge, however, is not your average instruction. Most reading this decision will be lawyers or judges. But consider the extent to which the recitation of all the foregoing justification instructions, even twice, through dense legal language more laborious than has been written here, would be understood by jurors. Consider whether they would first remember all these provisos. Then consider whether they would be able to correctly apply all of them separately to two different victims and five separate counts. Finally consider what interest is being served by prohibiting jurors from having these instructions in writing when they ask for them.

The Justification Charge Can be Much More Complicated

The court would finally make two other points. There were multiple additional justification instructions in the CJI it did not provide jurors in this case. This instruction in a different case may have been much more complicated. There is an instruction which is even more complicated and difficult to understand, in this court's view, for circumstances where a defendant might be justified during one part of an encounter but not another. There is an instruction about what the rules are regarding a victim's reputation for violence, threats of violence or prior violent acts. There is a rule which further modifies the “initial aggressor” concept which applies when a person withdraws from an encounter and later uses deadly physical force. There is an instruction about the use of abusive language. There is an instruction about how a defendant's threats or reputation for violence influence whether he or she is the initial aggressor. There is an exception to the “duty to retreat” rule for dwellings. There is an instruction that a defendant is not justified when the victim's conduct was “provoked” by the defendant with the intent to cause physical injury. There is an instruction (likely rarely given) where an altercation is part of an unlawful “combat by agreement”. In some cases, moreover, justification applies to some counts but not others, requiring a further instruction that a finding that the People did not prove beyond a reasonable doubt that the Defendant was not justified does not require an acquittal on those counts for which the justification defense does not apply.

Second the justification charge given here was only a portion of the instructions the court gave on the elements of the five charges. Each such charge, in addition, contained several definitions and provisos. None were ever provided in writing.

The Statutory Prohibition on Written Instructions

CPL 310.30 reads as follows:

At any time during its deliberation, the jury may request the court for further instruction or information with respect to the law, with respect to the content or substance of any trial evidence, or with respect to any other matter pertinent to the jury's consideration of the case. Upon such a request, the court must direct that the jury be returned to the courtroom and, after notice to both the people and counsel for the defendant, and in the presence of the defendant, must give such requested information or instruction as the court deems proper. With the consent of the parties and upon the request of the jury for further instruction with respect to a statute, the court may also give to the jury copies of the text of any statute which, in its discretion, the court deems proper.

In People v. Johnson, 81 NY2d 980 (1993) the Court of Appeals reversed a conviction because the court provided the jury with its entire charge in writing at the jury's request and over the defendant's objection. The court reasoned that CPL 310.30 required party consent to provide the jury with a copy of a statute on their request and that the court's charge included statutory material. It is thus error, not subject to harmless error analysis, for a court to provide written instructions to a jury not authorized by CPL 310.30 absent defendant consent. People v. Sotomayer, 173 AD2d 500 (2nd Dept 1991), aff'd 79 NY2d 1029 (1992). Convictions have been overturned where courts have violated this rule. See, e.g., People v. Peralta, 172 AD3d 457 (1st Dept 2019); People v. Stuart, 78 Misc 3d 131 (A) (App Term, 1st Dept 2023).

While the cases reversing convictions for providing the court's written charge to jurors concern defense consent, that is not because the rule applies differently for prosecutors. Prosecutors cannot appeal acquittals, even if a court makes a clear legal error during a trial. Since such issues always arise during deliberations, moreover, even the possibility of filing an Article 78 petition or seeking a writ of mandamus for a violation of this rule might be practically impossible. Thus, prosecutors have no effective remedy if a court violates CPL310.30 by providing the jury with written instructions over a prosecutor's objection. The statute on which the cases cited here is based, however, speaks to the consent of the “parties”. It would be contrary to the statute, the reasoning of case law interpreting it and fundamental fairness to not apply this rule, as the court did here, to cases where a prosecutor did not consent to provide the jury with written instructions.

Basis for the Court's Conclusion

An “as applied” constitutional challenge to a statute, here the prohibition on providing written jury instructions contained in CPL 310.30, “calls on the court to consider whether a statute can be constitutionally applied to a defendant under the facts of the case”. People v. Stuart, 100 NY2d 412, 421 (2003) (citations omitted). “State statutes under scrutiny carry with them a strong presumption of constitutionality, that they will be stricken as unconstitutional only as a last resort and that courts may not substitute their judgement for that of the Legislature as to the wisdom and expediency of the legislation”. People v. Davis, 43 NY2d 17, 30 (1977).

The claim here is that the prohibition on written instructions is a violation of substantive due process. Substantive due process, as protected by the Fourteenth Amendment to the United States Constitution, “protects against government action that is arbitrary, conscience-shocking, or oppressive in a constitutional sense, but not against government action that is incorrect or ill advised”. People v. Malloy, 228 AD3d 1284 (4th Dept, 2024) (quotation omitted).

The Defendant's claim before the trial court here is procedurally barred, in the Court's view, because he never made the argument during the trial that the statute not authorizing the court to provide written instructions was unconstitutional as applied to him. He did object to the court's action and argued it deprived his client of a fair trial. A trial court on a CPL 330.30 (1) motion can only set aside a verdict on the basis of an objection made during the trial. People v. Sudol, 89 AD3d 499 (1st Dept 2011). The challenge is further barred because there is no evidence the Defendant served his motion asserting a constitutional challenge on the Attorney General as required by statute, although that defect could be remedied by directing such service and delaying an adjudication of this motion. Executive Law 71; People v. Johnson, 246 AD3d 474 (1st Dept 2026), lv denied, 45 NY3d 997 (2026).

Turning to the merits and regardless of the level of constitutional scrutiny which might be applied to this question, in the court's view, a facial challenge to the statute (not being made here) would clearly not lie with respect to the prohibition on written instructions. There are two possible reasons this court has heard which might justify the current rule. The first is that the decision on whether to provide the jury with written instructions should only be made with the consent of both parties. The second is that, by providing written instructions, a jury might focus on the law at the expense of a more complete discussion of the facts. This court doesn't find either justification remotely persuasive but does not believe its policy disagreement with the current rule means the statute is unconstitutional.

Juries may not understand the law without written instructions and thus may not be able to properly perform their duties. Thus, even where one or both parties believe it is in their tactical advantage to oppose written instructions, that should not allow them to effectively bar juries from understanding the important decisions they have been asked to make. Moreover, to the extent parties may object to the provision of a written charge based on the tactical calculation that it would be better for jurors to not fully understand a complex legal instruction, such calculations are inherently based on nothing more than speculation or guesswork. There is no way a lawyer can get into the mind of each of 12 jurors and accurately assess whether a full understanding of the law with respect to numerous instructions would help or hurt a defense or prosecution position, much less predict how such perceptions would play out during deliberations. In this case, however, the People indicated that their position was not based on a tactical consideration but was a standard policy they applied to the question.

Written instructions would also do nothing to undermine factual debates in a jury room. Juries are entitled to have facts fully documented during deliberations. They may request readbacks of testimony and exhibits. They frequently review photographs, watch videos, often multiple times, read through voluminous financial, scientific or other records, review power point presentations or charts organizing evidence and review or handle physical exhibits like clothing or weapons (the latter only under supervision of a court officer). The current rule allows juries to fully review facts while significantly impairing their ability to understand the law.

This court, like others, has often had the experience of having jurors look at it in abject disbelief when told it will not provide them with the written instructions it just read, as they requested. In one case this court presided over, the jurors were so insistent on getting a copy of the charge (over objection) that the court dictated a portion of the charge word by word and had the jurors copy it by hand, in the same way that scribes have recorded information dating back millennia.¹² But as ill-advised as this Court believes the current rule is, in this Court's view, it is not “conscience shocking” or “oppressive in a constitutional sense”. It is policy decision the Legislature has made, and implicitly reaffirmed year after year, by not enacting legislation to allow jurors to receive written instructions.

The court also does not believe the written instruction prohibition was unconstitutional as applied in this case because the significant concerns this court has outlined here about the justification charge, while shared by both parties, were never expressed by the jury. First, the jury's request for written instructions did not identify the justification charge as the focus of their request. They rather appeared to request the elements of the charges (which included the justification charge). When the court told the jury it could not provide them with written instructions and then asked whether they wanted the instructions read to them, the jury also made no mention of the justification issue. They rather asked for the “the definition of each charge, the three elements we have to prove per charge, definition of injury, serious physical injury, and physical injury”. They did not write, for example, that they were having difficulty understanding the justification instruction. They asked no questions about it. Indeed, in their final note before indicating they had apparently reached a partial verdict they again focused on issues not involving justification, asking for “instructions for count four, definition of physical and serious physical injury. It is always impossible to know precisely what occurs during jury deliberations, but the jury's verdict also gave no indication that they failed to understand the court's instructions. On the contrary, the jury's verdict appeared to be carefully considered. They acquitted the Defendant on two counts, convicted him on two counts and were unable to reach a verdict on one count.

There is also no basis to presume from the jury's actions and communications that they did not apply the justification charge as the court provided it. As noted earlier, one of the most difficult parts of the charge, outlining the rules which required acquittal on some counts if the jury acquitted the Defendant on other counts based on justification, was provided to the jury in writing on the verdict sheet. In the court's view, moreover, there was nothing unreasonable in the jury's apparent rejection of the justification defense. The defense largely came from the Defendant's testimony and the Defendant was obviously an interested witness. There was also limited corroborating evidence supporting his testimony regarding whether the victims he assaulted used or threatened the imminent use of deadly physical force. Moreover, even presuming the jury believed the Defendant's testimony, they may have concluded that a reasonable person in the Defendant's position would not have believed deadly physical force was necessary to defend against the use or imminent use of deadly physical force by the Defendant's two victims. There were thus a variety of reasonable conclusions the jury could have drawn in this case which would have led to a determination that the People proved beyond a reasonable doubt that the Defendant was not justified.

The one-word error this court has pointed out here, which has not been raised by either party as an issue, provides no basis for a reversal first because it was unpreserved and the court is thus procedurally barred from considering it. Turning to the merits, presuming that any member of the jury noticed this court's error in its instruction (a far-fetched assumption, in this court's view) the court also does not believe this provides a basis for reversal in any event. The error worked to the determinant of the People — not the Defendant. It appeared to indicate that the Defendant could be acquitted if he did not initiate the use of simple “physical force” or know who had done so, while, with a correct instruction, this would not be a basis for acquittal.

Despite the Court's Ruling — There is a Serious Problem

Despite the court's ruling, however, it believes there is a significant problem in expecting juries to correctly apply a dense charge like justification without a written instruction. The complexity of the charge itself is the result of the work of three entities. There is the Legislature, which wrote the law. There are appellate cases which have further construed it. And there is the CJI Committee which writes the pattern instructions.

This court may be biased as a newly minted member of the CJI Committee, but it believes the Committee does an excellent job of reflecting the law in the instructions it writes, including the justification charge. The Legislature has written a statute which has a degree of complexity. But it has been made much more complex by appellate case law. The CJI contains extensive citations to numerous refinements which have been made to the justification statute by appellate cases over many years. Each appellate decision has, in this Court's view, been based on carefully considered and sound principles. But using the time worn analogy of a forest and trees, while each analytic tree may have been soundly created, the trees have populated a forest which is so complex as to be difficult or impossible for jurors to understand, particularly without written instructions. It may be time for appellate courts to consider the cumulative impact of the rulings they make in areas like this on jury instructions. To the extent sub-issues within the justification charge are not precisely defined, of course, they may not be correctly applied. On the other hand, at a certain point, the benefits of additional rules are outweighed by the difficulty, particularly for lay jurors, of construing complex legal instructions as a whole. In this court's view, that line was crossed long ago.

This Court happens to chair the Office of Court Administration's Advisory Committee on Criminal Law and Procedure. We are a group of judges and lawyers who develop legislative proposals for submission to court system leadership. Upon their approval, the proposals are submitted to the Legislature. For about 15 years, the court system has been proposing legislation to allow juries to receive a copy of the court's instructions in writing upon request. The proposal has never been enacted.¹³ This year, the Senate passed legislation to address this issue, but the bill did not advance in the Assembly. S-1285-a Persaud, et. al/A-1471, Simon et al. This bill contains one significant modification from the court system proposal which the Legislature should consider clarifying. It provides that before the court gives the jury written instructions on request, the court should read them. Such instructions are always read to juries. Requests for written instructions always come only after the instructions are read. It is not clear, however, under the legislation, whether the statute directs a second reading or whether the reading which is always provided before a request for written instructions is intended to suffice. It is further not clear whether, presuming a second reading would be required, this requirement could be waived by the parties or could be waived by the court if the jury said they did not want the instructions read again. Presuming again that a second reading was required, it is also not clear what benefit that would provide where the jury had already heard the charge, received a copy of it in writing and had not requested it to be read again. The bill, however, even with this additional requirement, would allow juries to receive written instructions on request and provide a few simple safeguards to ensure the procedure was transparent and accurate. It would address the problem identified here.

For all those reasons, the Defendant's motion is denied. This constitutes the Decision and Order of the court.

FOOTNOTES

1.   Over the People's objection, the court did not submit two additional counts of the indictment to the jury regarding the identical conduct: Gang Assault in the First Degree and Attempted Gang Assault in the First Degree. The court noted that the significant complexities in the instructions outlined infra would become even more difficult with these additional charges; that the charges could have no impact on the Defendant's sentencing parameters and that the elements of these two counts largely duplicated the elements of the first-degree assault and attempted first degree assault counts the jury was asked to consider.

2.   Transcript, p. 1009

3.    Id., p. 1011

4.    Id.

5.    Id., p. 1013

6.    Id., p. 1016

7.    Id, p. 1032

8.   The Committee's formal title is: “The New York State Unified Court System Committee on Criminal Jury Instructions, Model Colloquies and Evidence Rules.” The current rules are the second edition, the CJI2d. The Committee's public webpage provides that: “A CJI2d instruction is a model instruction provided for the guidance of a trial court. It is not a mandated instruction. CJI2d instructions have, however, met with appellate court approval. Individual cases may require a modification or addition to an instruction, particularly because the CJI2d Committee does not receive adversarial briefs or arguments on legal issues related to an instruction. Such issues are left to the discretion of the trial court.” This court was recently appointed as a member of the committee when its membership was merged with the membership of a different committee this court served on.

9.   The CJI charge the court provided is entitled: “Justification: Use of Deadly Physical Force in Defense of a Person Penal Law 35.15 (2) (Effective Sept 1, 1980). The actual charge given by the court regarding the elements of the crimes, including the justification defense, is contained in pages 957-984 of the trial transcript.

10.   This language is copied from People v. Walker, 26 NY3d 170,177 (2015) (additional citation omitted).

11.    See, e.g., Geoffrey P. Kramer & Dorean M. Koenig, Do Jurors Understand Criminal Jury Instructions? Outlining the Results of the Michigan Juror Comprehension Project, 23 U. Mich. J.L. Reform 401, Spring, 1990; Blake M. McKimmie, Emma Antrobus & Chantelle Baguley Objective and Subjective Comprehension of Jury Instructions in Criminal Trials, 17 New Crim. L. Rev. 163, Spring, 2014; Judith L. Ritter, Your Lips are Moving ․ But the Words Aren't Clear: Dissecting the Presumption that Jurors Understand Instructions” 69 Mo. L. Rev. 163, Winter 2004.

12.   The use of scribes to record dictated information dates to the 3rd century BCE in ancient Mesopotamia, using Cuneiform, one of the world's earliest language systems. See Wikipedia article on “Scribe”.

13.   Legal commentators have supported this proposal for decades. See, e.g., Donnino Practice Commentary to CPL 310.30 (2026) “The Legislature should revisit the ․ provision and should give the trial court the authority, after notice to the parties and an opportunity to be heard, to decide, at least upon request of the jury, whether to give them a written copy of its full charge or a requested portion thereof or some pertinent statutory text. See Susan R. Schwaiger, The Submission of Written Instructions and Statutory Language to New York Criminal Juries, 56 Brooklyn L. Rev 1353, 1380 (Winter 1991) (“The submission of a written jury charge could be a very significant aid to jury comprehension. Carefully designed procedures could adequately protect the defendant against the danger of prejudice that may arise in any written jury submission”); Jason P.W. Halperin & Erin Galliher, Don't Make it a Memory Test: Let Jurors in New York Have Copy of the Court's Instructions, NYLJ, June 18, 2024.

Daniel Conviser, J.