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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Floyd ROBERTS, Defendant-Appellant.

Decided: February 22, 2001

ROSENBERGER, J.P., TOM, MAZZARELLI, ELLERIN and WALLACH, JJ. Robert W. Gifford, for Respondent. Frank J. Loss, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Felice Shea, J.), rendered September 8, 1997, convicting defendant, after a jury trial, of manslaughter in the first degree, and sentencing him, as a second felony offender, to a term of 6 to 12 years, unanimously reversed, on the law, and the indictment dismissed, with leave to re-present any appropriate counts to another Grand Jury.

Defendant Floyd Roberts was indicted for the crime of murder in the second degree, in connection with the fatal stabbing of Neville Samuels.

At defendant's trial, the court submitted four charges to the jury:  (1) intentional murder in the second degree;  (2) depraved indifference murder in the second degree;  (3) manslaughter in the first degree;  and (4) manslaughter in the second degree.   The court also instructed the jury on justification.   The jurors were instructed that a unanimous guilty verdict on a greater charge precluded the consideration of any lesser charges (e.g., a guilty verdict of intentional murder in the second degree would end deliberations).   Although the court instructed the jurors that justification was a defense to all of the counts, it did not instruct them that if they were to find defendant not guilty by reason of justification on a count, they were not to consider any lesser crimes.   The jury found the defendant guilty of manslaughter in the first degree.

 We agree with defendant's argument that the trial court erred in failing to instruct the jurors that a finding of not guilty of a greater charge on the basis of justification precluded consideration of any lesser counts (see, People v. Castro, 131 A.D.2d 771, 773, 516 N.Y.S.2d 966 (“[A]lthough the court properly permitted the jury to consider justification with respect to each of three counts submitted [murder, and manslaughter in the first and second degrees], the jury should also have been instructed that a finding of not guilty by reason of justification as to any of the counts would preclude a verdict of guilty as to its lesser included offenses”) (citations omitted);  see also, People v. Higgins, 188 A.D.2d 839, 840-841, 591 N.Y.S.2d 612, lv. denied, 81 N.Y.2d 972, 598 N.Y.S.2d 773, 615 N.E.2d 230).

 As 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 on the two manslaughter counts as well, the judgment must be reversed, and the indictment dismissed, without prejudice to the People to re-present any appropriate charges to another Grand Jury (see, People v. Mayo, 48 N.Y.2d 245, 422 N.Y.S.2d 361, 397 N.E.2d 1166).   The highest offense for which defendant may be re-indicted, however, is manslaughter in the first degree (see, People v. Cruz, 126 A.D.2d 495, 511 N.Y.S.2d 19;  Castro, 131 A.D.2d at 774, 516 N.Y.S.2d 966).