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PEOPLE v. HERRERA

Index No. 1684/15. Appeal No. 12929. Case No. 2017-02109.

193 A.D.3d 189 (2021)

142 N.Y.S.3d 59

2021 NY Slip Op 01148

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. KARILIE HERRERA, Appellant.

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

Decided February 23, 2021.

Attorney(s) appearing for the Case

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

Cyrus R. Vance, Jr. , District Attorney, New York City ( Philip Vyse Tisne and Patrick J. Hynes of counsel), for respondent.

RENWICK, J.P., KAPNICK, KERN and KENNEDY, JJ., concur.

OPINION OF THE COURT

The trial court's instructions failed to convey that an acquittal of the greater charge of attempted assault in the first degree on the basis of justification precluded consideration of the lesser included offense of second-degree assault. Because we cannot know the theory upon which the jury relied...

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