People v. Jenkins, 11 N.Y.3d 282 (2008)

A defendant must specifically request a jury instruction on an affirmative defense to preserve the issue for appellate review; a general discussion during a charge conference is insufficient.

Summary

The defendant was convicted of burglary, assault, and endangering the welfare of a child. The Appellate Division reversed the assault convictions due to the trial court’s failure to provide a self-defense charge, reduced the burglary conviction to second degree due to an indictment deficiency, but rejected the defendant’s claim that he was entitled to a new trial on the burglary charge based on the lack of a “choice of evils” instruction. The Court of Appeals affirmed, holding that the defendant failed to properly preserve the “choice of evils” defense for appellate review because he did not specifically request the instruction. The Court further held that the Appellate Division properly declined to reverse the burglary conviction after reversing the assault convictions.

Facts

The defendant was charged with burglary in the first degree, two counts of assault in the third degree, and endangering the welfare of a child. The charges stemmed from an incident involving an altercation. At trial, the defendant requested a self-defense charge. After his conviction, the defendant appealed, arguing that the trial court erred by failing to give a “choice of evils” instruction regarding the burglary charge.

Procedural History

Following a jury trial, the defendant was convicted. The Appellate Division reversed the assault convictions and reduced the burglary conviction. The defendant appealed to the Court of Appeals, arguing that he was entitled to a “choice of evils” instruction for the burglary offense, and that reversal of the assault convictions should have led to reversal of the burglary conviction as well. The Court of Appeals affirmed the Appellate Division’s order.

Issue(s)

1. Whether the defendant preserved the argument that he was entitled to a Penal Law § 35.05 “choice of evils” charge for the burglary offense.

2. Whether the Appellate Division erred in failing to reverse the burglary conviction after reversing the assault convictions based on a charging error.

3. Whether the trial court erred in precluding the admission of photographs of an injury suffered by a person not present during the altercation.

Holding

1. No, because the defendant failed to alert the trial court that he was seeking a “choice of evils” instruction in addition to the self-defense instruction.

2. No, because the burglary conviction was not “contaminated” by the charging error associated with the assault counts.

3. No, because the court did not abuse its discretion in holding that the proffered evidence was collateral and that its prejudicial effect would outweigh any potential probative value.

Court’s Reasoning

The Court of Appeals held that the defendant failed to preserve the “choice of evils” defense because he did not specifically request a jury instruction on that defense. The Court noted that a general discussion during the charge conference regarding self-defense was insufficient to preserve the distinct “choice of evils” defense. The Court cited People v. Craig, 78 NY2d 616 (1991). The Court emphasized that the defendant needed to alert the trial court that he was seeking the choice of evils instruction in addition to the self-defense instruction. Failing to do so forfeited the argument on appeal. As for the argument that the reversal of the assault convictions should have led to reversal of the burglary conviction, the Court summarily rejected this claim. Regarding the exclusion of photographs, the Court held that the trial court has discretion to exclude evidence if its prejudicial effect outweighs its probative value, citing People v. Pavao, 59 NY2d 282 (1983), and found no abuse of discretion here.