| People v Gonzalez-Alvarez |
| 2015 NY Slip Op 05616 [129 AD3d 647] |
| June 30, 2015 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Jonathan Gonzalez-Alvarez,Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Bruce D. Austern ofcounsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Andrew E. Seewald of counsel),for respondent.
Judgment, Supreme Court, New York County (Ruth Pickholz, J.), rendered February15, 2012, as amended February 28, 2012, convicting defendant, after a jury trial, ofmurder in the second degree and gang assault in the first degree, and sentencing him toan aggregate term of 23 years to life, unanimously affirmed.
Defendant was not prejudiced by the court's postsummation change of plan regardinga jury instruction. Before summations, the court granted the prosecution's request for anaccessorial liability charge, over defendant's objection. During his summation, defensecounsel referred to the prosecutor's anticipated alternative argument that defendant actedas an accessory, arguing that it represented a change of course for the prosecution,reflecting a lack of confidence in its case. The prosecutor's summation emphasized theextensive proof that defendant personally killed the deceased, but briefly mentioned analternative theory of accessorial liability. After summations, the court determined that itwould not charge accessorial liability. This was error, because it misled defense counselas to what the court intended to charge. However, the error was plainly harmless, becausethere was overwhelming evidence that defendant personally stabbed the victim to death,because defense counsel was not prevented from fully arguing to the jury regarding thekey issue of whether defendant himself committed the crime, and because the effect ofthe court's change of course upon the defense summation was insignificant (seePeople v Miller, 70 NY2d 903, 907 [1987]).
The court properly declined to submit manslaughter in the first degree as a lesserincluded [*2]offense. Given the types, locations, andmultiplicity of the stab wounds, there was no reasonable view of the evidence, viewedmost favorably to defendant, that he acted with anything less than homicidal intent(see People v Butler, 84 NY2d 627 [1994]). Concur—Tom, J.P., Acosta,Andrias, Moskowitz and Clark, JJ.