| People v Irizarry |
| 2011 NY Slip Op 07654 [88 AD3d 1013] |
| October 25, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v PedroIrizarry, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and ShulamitRosenblum Nemec of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Tomei, J.),rendered February 1, 2007, convicting him of murder in the second degree and assault in thesecond degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Where, as here, "a court charges the next lesser included offense of the crime alleged in theindictment, but refuses to charge lesser degrees than that . . . the defendant'sconviction of the crime alleged in the indictment forecloses a challenge to the court's refusal tocharge the remote lesser included offenses" (People v Boettcher, 69 NY2d 174, 180[1987]; see People v Green, 5 NY3d538, 545 [2005]; People vAlston, 77 AD3d 762, 762 [2010]). "Thus, review of the defendant's challenge to the[Supreme] Court's refusal to charge manslaughter in the second degree as a lesser-includedoffense of murder in the second degree is foreclosed by the jury verdict finding him guilty ofmurder in the second degree, the crime alleged in the indictment, and its implicit rejection of thelesser-included offense of manslaughter in the first degree" (People v Gorham, 72 AD3d 1108, 1109 [2010]; see People vJohnson, 87 NY2d 357, 361 [1996]; People v Alston, 77 AD3d at 762). Mastro, J.P.,Eng, Belen and Hall, JJ., concur.