| People v Stanford |
| 2011 NY Slip Op 06766 [87 AD3d 1367] |
| September 30, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v James R.Stanford, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Geoffrey Kaeuper of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.), renderedSeptember 26, 2007. The judgment convicted defendant, upon a jury verdict, of manslaughter inthe first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofmanslaughter in the first degree (Penal Law § 125.20 [1]). We reject defendant'scontention that County Court erred in refusing to charge manslaughter in the second degree(§ 125.15 [1]) as an additional lesser included offense of murder in the second degree(§ 125.25 [1] [intentional murder]) as charged in the indictment. It is well settled that, "[t]oestablish entitlement to a lesser included offense charge, the defendant must make two showings.First, it must be shown that . . . in all circumstances, not only in those presented inthe particular case, it is impossible to commit the greater crime without concomitantly, by thesame conduct, committing the lesser offense. That established, the defendant must then show thatthere is a reasonable view of the evidence in the particular case that would support a finding thathe committed the lesser offense but not the greater" (People v Glover, 57 NY2d 61, 63[1982]). Although we agree with defendant that manslaughter in the second degree may be alesser included offense of intentional murder (see People v Brockett, 74 AD3d 1218, 1219-1220 [2010]; People v Boyd, 60 AD3d 779, 780[2009], lv denied 12 NY3d 913 [2009]; see generally People v Sullivan, 68 NY2d495, 501 [1986]), we conclude that there was no reasonable view of the evidence that wouldpermit the jury to find that defendant committed manslaughter in the second degree but did notcommit manslaughter in the first degree or intentional murder. The latter two crimes requireevidence that defendant acted intentionally, whereas manslaughter in the second degree requiresevidence that he acted recklessly. Defendant gave several statements to the police in which headmitted that he stabbed the victim so that she would release her grip on him. The evidence alsoestablished that the victim was stabbed four times in the neck and that one of the wounds wasseveral inches deep and had severed her major blood vessels. "Thus, by admitting intentionalconduct, defendant negated any theory of recklessness . . . Furthermore, the number,depth, and placement of the victim's stab wounds were completely inconsistent with recklessrather than intentional conduct" (People v Sussman, 298 AD2d 205, 205 [2002], lvdenied 99 NY2d 585 [2003]; cf.People v Castellano, 41 AD3d 184, 185 [2007], affd 11 [*2]NY3d 850 [2008], rearg denied 12 NY3d 771 [2009]).
The court also properly denied defendant's request for a jury charge on the justifiable use ofdeadly physical force to prevent or terminate a burglary (see Penal Law § 35.20[3]). Viewing the evidence in the light most favorable to defendant (see People vMcManus, 67 NY2d 541, 549 [1986]; People v Watts, 57 NY2d 299, 301 [1982]),we conclude that there was no reasonable view of the evidence that would permit a jury toconclude that defendant reasonably believed that deadly physical force was necessary to preventor terminate a burglary (see People vPetronio, 34 AD3d 602, 603-604 [2006], lv denied 8 NY3d 948 [2007];People v McDaniel, 295 AD2d 371 [2002], lv denied 98 NY2d 770 [2002]; cf.People v Deis, 97 NY2d 717, 719-720 [2002]; People v Fagan, 24 AD3d 1185, 1186-1187 [2005]).
In addition, the court properly denied defendant's request for a circumstantial evidencecharge. It is well established that, where the charges against defendant are supported by bothcircumstantial and direct evidence, the court is not required to provide the circumstantialevidence charge (see People v Daddona, 81 NY2d 990, 992 [1993]). Here, inasmuch asdefendant's statements to the police "constituted direct evidence of several of the principal facts[at] issue" (People v Campbell, 69AD3d 645, 646 [2010]), the court properly denied his request for that charge (see Peoplev Alexander, 153 AD2d 507, 509 [1989], affd 75 NY2d 979 [1990]; People v Buskey, 13 AD3d 1058[2004]; see generally People v Rumble, 45 NY2d 879, 880-881 [1978]).
Finally, the sentence is not unduly harsh or severe. Present—Scudder, P.J., Smith,Lindley, Sconiers and Gorski, JJ.