Jury instructions on resisting & obstructing a police officer; People v Kowalski; Ineffective assistance of counsel; Strickland v Washington

In an order in lieu of granting leave to appeal, the court reversed Part III(B) and vacated Part III(D) of the Court of Appeals judgment (see eJournal # 79831 in the 7/26/23 edition) as it related to the jury instruction on resisting and obstructing a police officer. It held that the Court of Appeals erred in ruling that the jury instruction given “‘fairly presented the issues to be tried and adequately protected the defendant’s rights.’” The court noted that, as “recognized by the Model Criminal Jury Instructions, a jury cannot meaningfully assess whether an officer acted lawfully without ‘detailed legal instructions regarding the applicable law governing the officer’s legal authority to act.’” The court found that the instructions here “correctly advised the jury that the prosecution must show that the police were acting lawfully, then stated ‘[i]t is up to you to determine whether the officers’ actions were legal according to the law as I have just described it to you,’ without describing the legal standard applicable to these facts. Leaving the jury without a legal framework for assessing whether the officers’ actions were lawful does not ‘fairly present[] the issues to be tried and adequately protect[] the defendant’s rights.’” The court remanded the case to the Court of Appeals to consider “whether trial counsel’s failure to request such an instruction was ‘representation [that] fell below an objective standard of reasonableness’” that prejudiced defendant. It denied leave to appeal in all other respects because it was not persuaded it should review the remaining questions presented.

Dissenting, Justice Zahra (joined by Justice Viviano) concluded that while defendant had “a colorable argument that the quoted jury instruction was flawed,” she did not consider the fact “that she was also arrested for disturbing the peace.” He found that because the actions related to that charge were “not associated with defendant’s ensuing arrest, and the jury convicted defendant of this offense, the jury must likewise have concluded that the police had probable cause to lawfully arrest defendant for disturbing the peace.” As a result, her “arrest was lawful on this basis, and her application should be denied.”