| People v Brockett |
| 2010 NY Slip Op 05575 [74 AD3d 1218] |
| June 22, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Jawara Brockett, 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 (Marrus, J.),rendered January 8, 2007, convicting him of manslaughter in the first degree and criminalpossession of a weapon in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law, and as a matter of discretion in the interestof justice, a new trial is ordered on the charge of criminal possession of a weapon in the seconddegree, and the indictment is otherwise dismissed with leave to the People to re-present anyappropriate charges to another grand jury (see People v Beslanovics, 57 NY2d 726, 727[1982]).
The defendant was indicted on charges of murder in the second degree, criminal possessionof a weapon in the second degree, three counts of criminal possession of a weapon in the fourthdegree, and two counts of unlawful possession of marijuana.
At the charge conference, the trial judge informed counsel that he would submit to the jurythe charge of murder in the second degree, with a lesser-included offense of manslaughter in thefirst degree, one count of criminal possession of a weapon in the second degree for the weaponused in the shooting, and one count of criminal possession of a weapon in the fourth degree forthe gun found in the defendant's bedroom that was not used in the shooting. Defense counselobjected to charging the lesser-included offense of manslaughter in the first degree, butrequested that the court charge manslaughter in the second degree as a lesser-included offense.The trial judge found that there was a reasonable view of the evidence that would support bothcharges and determined that it would charge both manslaughter in the first degree andmanslaughter in the second degree. However, without providing any reason on the record, thetrial judge failed to charge manslaughter in the second degree. After the completion of thecharge, defense counsel did not except or ask for additional charges.
The defendant was acquitted of murder in the second degree and criminal possession of aweapon in the fourth degree and found guilty of manslaughter in the first degree, as alesser-included offense, and criminal possession of a weapon in the second degree.[*2]
On appeal, the defendant contends that the failure ofdefense counsel to object to the charge, which omitted manslaughter in the second degree,constituted ineffective assistance of counsel. The People contend that because the trial judgefailed to charge manslaughter in the second degree, there must have been an off-the-recorddiscussion with the Supreme Court at which the People were not present, wherein defensecounsel withdrew his request for that charge.
The record does not reflect an application by defense counsel to withdraw his request tocharge manslaughter in the second degree. Nor was any documentary evidence presented to thisCourt that would support that contention.
Under the facts adduced at the trial, it was error for the trial judge to fail to chargemanslaughter in the second degree when requested by the defendant (see People vIrizarry, 213 AD2d 425 [1995]). Viewed in the light most favorable to the defendant, therewas a reasonable view of the evidence that the defendant may have been guilty of the lessercrime and not the greater (see People v Martin, 59 NY2d 704, 705 [1983]; People vGreen, 56 NY2d 427 [1982]; People v Henderson, 41 NY2d 233, 236 [1976];People v Lee, 35 NY2d 826 [1974]; People v Brantley, 209 AD2d 272 [1994]).Therefore, the failure to charge manslaughter in the second degree compromised the defendant'sright to a fair trial.
Although this error was not preserved for appellate review (see CPL 470.05 [2];People v Ford, 11 NY3d 875, 878 [2008]; People v Cordes, 71 AD3d 912[2010]; People v LaPetina, 34 AD3d 836, 840 [2006], affd 9 NY3d 854 [2007]),under the circumstances, as the defendant was acquitted of intentional murder and convicted ofthe lesser-included offense of manslaughter in the first degree, we nevertheless reach the matterin the exercise of our interest of justice jurisdiction (see CPL 470.15 [6] [a]; People vCotterell, 7 AD3d 807, 807 [2004]; People v Rosario, 300 AD2d 512, 513 [2002];People v Little, 215 AD2d 778, 779 [1995]).
In addition, the failure to charge manslaughter in the second degree, which is defined as"recklessly" causing the death of another person (Penal Law § 125.15 [1]), had aprejudicial effect with respect to the defendant's conviction of criminal possession of a weaponin the second degree, which is defined as possession "with intent to use the same unlawfullyagainst another" (Penal Law § 265.03 [1] [b]). The defendant's possession of the weapon isfactually related to the shooting and, thus, given the underlying factual relationship between thecrimes, the defendant is entitled to a new trial on the count of criminal possession of a weapon inthe second degree (see People v McDaniel, 81 NY2d 10, 20 [1993]; People vCohen, 50 NY2d 908, 911 [1980]; cf. People v Irizarry, 213 AD2d 425 [1995]).
Thus, we reverse the judgment and grant a new trial on count two of the indictment, chargingcriminal possession of a weapon in the second degree. Inasmuch as defendant was convicted ofmanslaughter in the first degree, the lesser-included offense under count one of the indictment,that count is dismissed with leave to the People to re-present any appropriate charges to anothergrand jury (see People v Gonzalez, 61 NY2d 633 [1983]; People v Beslanovics,57 NY2d 726, 727 [1982]; People v Rodriguez, 69 AD3d 143 [2009]; People vCollier, 303 AD2d 1008, 1009 [2003]; People v Ducasse, 273 AD2d 399 [2000]).
As the matter is being remitted, we also review the defendant's contention that the trial judgeshould not have participated as a reader when the jury asked for a read-back of testimony, andwe agree with that contention. When, during a read-back of testimony, a trial judge assumes therole of a witness or inquiring counsel, he or she may unwittingly and erroneously convey to jurythat the court is aligned with the party or counsel whose role the court has assumed in theread-back (see generally People v De Jesus, 42 NY2d 519 [1977]).
The defendant's remaining contentions have been rendered academic or are without merit.Skelos, J.P., Angiolillo, Leventhal and Roman, JJ., concur.