| People v Boyd |
| 2009 NY Slip Op 01813 [60 AD3d 779] |
| March 10, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Terrance Boyd, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Seth M.Lieberman of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Reichbach,J.), rendered November 13, 2006, convicting him of manslaughter in the first degree andcriminal possession of a weapon in the second degree, upon a jury verdict, and imposingsentence.
Ordered that the judgment is affirmed.
The defendant was charged with murder in the second degree (intentional murder) andcriminal possession of a weapon in the second degree in connection with the shooting death ofDarron Powell. At trial, without objection, the Supreme Court granted the People's request tosubmit for the jury's consideration the lesser-included offense of manslaughter in the first degree.However, the court denied a defense request to submit the charge of manslaughter in the seconddegree to the jury. The jury convicted the defendant of manslaughter in the first degree andcriminal possession of a weapon in the second degree. The defendant contends that the court'srefusal to submit manslaughter in the second degree requires reversal. We disagree.
If it is impossible to commit an offense without, by the same conduct, concomitantlycommitting another offense of lesser degree, the latter is a "lesser included offense" of theformer (CPL 1.20 [37]). Upon request, a court must submit a lesser-included offense if, takingthe evidence in the light most favorable to the defendant, there is a reasonable view of theevidence under which the defendant committed the lesser, but not the greater, offense (seePeople v Glover, 57 NY2d 61, 63 [1982]; People v Green, 56 NY2d 427, 430[1982]).[*2]
Manslaughter in the second degree—commonlydescribed as reckless homicide—is a lesser-included offense of murder in the seconddegree based on intentional murder (see People v Sullivan, 68 NY2d 495, 501 [1986];People v Green, 56 NY2d at 433; cf. People v Butler, 84 NY2d 627, 634 [1994]).In the context of this case, the defendant would be guilty of manslaughter in the second degree ifhe engaged in conduct that created or contributed to a substantial and unjustifiable risk that adeath would occur, if he was aware of and consciously disregarded that risk, if the risk was ofsuch nature and degree that disregarding it constituted a gross deviation from the standard ofconduct that a reasonable person would observe in the situation, and if the risk was realized,resulting in Powell's death (see Penal Law § 15.05 [3]; § 125.15 [1];People v Licitra, 47 NY2d 554, 558 [1979]; People v Raymond, 56 AD3d 1306 [2008]; cf. People vBoutin, 75 NY2d 692, 696 [1990]). Where, as here, the jury was not charged on the law ofaccessorial liability, neither the defendant's testimony that he asked a friend to bring a gun to thescene "on standby" for him, nor his claim that the fatal shot was discharged when he attemptedto prevent a different friend from shooting the deceased, gives rise to a reasonable view of theevidence under which the defendant recklessly caused Powell's death, and acted without anintent to kill or seriously injure him (see People v Rose, 208 AD2d 414 [1994];People v Hunter, 141 AD2d 847 [1988]). Accordingly, the Supreme Court did not err indeclining to submit manslaughter in the second degree to the jury for its consideration as alesser-included offense.
The defendant's remaining contention does not warrant reversal. Fisher, J.P., Florio, Balkinand Belen, JJ., concur.