In Calkins the prosecutor properly charged the grand jury regarding justification based on the use of physical force in defense of a person with respect to the charge of assault in the second degree, the prosecutor failed to instruct the jury that such defense was also applicable to the charge of criminal mischief in the third degree. The grand jury voted not to indict defendant for assault but did indict him for criminal mischief.
The Court concluded that the
defendant was exposed to the possibility of prejudice by the deficiencies in the prosecutor's charge regarding justification based on the use of physical force in defense of a person (see People v Huston, 88 NY2d 400, 409). That error was compounded by the fact that the prosecutor also failed to charge the grand jury regarding justification based on the use of physical force in defense of premises (see § 35.20 [3]). In addition, the possibility of prejudice was increased by the failure of the prosecutor to inform the grand jury of defendant's request to call a witness to the incident giving rise to the charges...
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