| People v Davis |
| 2017 NY Slip Op 01223 [147 AD3d 971] |
| February 15, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Kenneth Davis, Appellant. |
Lynn W. L. Fahey, New York, NY (Ronald Zapata of counsel), for appellant.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Solomon Neubort,and Marie John-Drigo of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Firetog, J.),rendered July 30, 2014, 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 a new trial is ordered on the count ofcriminal possession of a weapon in the second degree, and the indictment is otherwise dismissedwith leave to the People to represent any appropriate charges to another grand jury (seePeople v Beslanovics, 57 NY2d 726, 727 [1982]).
The defendant was indicted on charges of murder in the second degree and criminalpossession of a weapon in the second degree. During the charge conference at trial, the SupremeCourt granted so much of the defendant's application as requested that the court submit to thejury the charge of manslaughter in the first degree as a lesser-included offense of murder in thesecond degree, but denied so much of the defendant's application as sought to have manslaughterin the second degree and criminally negligent homicide submitted as lesser-includedoffenses.
The defendant was acquitted of murder in the second degree, but convicted of manslaughterin the first degree and criminal possession of a weapon in the second degree.
On appeal, the defendant contends that the failure of the Supreme Court to submitmanslaughter in the second degree and criminally negligent homicide as lesser-included offensesdeprived him of a fair trial. We agree.
Under the facts adduced at the trial, the Supreme Court erred in failing to chargemanslaughter in the second degree (see People v Green, 56 NY2d 427 [1982]; Peoplev Suarez, 148 AD2d 367 [1989]; People v Davis, 142 AD2d 791 [1988]; People vCruz, 126 AD2d 495 [1987]; Peoplev Bryant, 74 AD3d 1221 [2010]) and criminally negligent homicide (see People vIrizarry, 213 AD2d 425 [1995]; People v McInnis, 179 AD2d 781 [1992]; Peoplev Brooks, 163 AD2d 832 [1990]) when requested by the defendant. Although a witnesstestified that, in the course of a physical altercation, the defendant pulled a gun from his backwaist area and shot the decedent, the defendant testified that the decedent brandished the gun,that the two men struggled over the weapon, and that the gun accidentally went off during thestruggle. [*2]Viewed in the light most favorable to the defendant,there was a reasonable view of the evidence that the defendant may have been guilty of the lessercrimes and not the greater (see People v Glover, 57 NY2d 61, 63 [1982]; CPL 300.50 [1],[2]). Therefore, the failure to charge manslaughter in the second degree and criminally negligenthomicide compromised the defendant's right to a fair trial.
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 weapon inthe second degree, which is defined as possession of "any loaded firearm" (Penal Law§ 265.03). The defendant's possession of the weapon is factually related to theshooting and, thus, given the underlying factual relationship between the crimes, the defendant isentitled to a new trial on the count of criminal possession of a weapon in the second degree(see People v Cohen, 50 NY2d 908, 911 [1980]; People v Brockett, 74 AD3d 1218, 1220 [2010]).
In light of this Court's reversal and remittal for a new trial, the defendant's remainingcontention, that his sentence was excessive, is academic. Chambers, J.P., Hall, Miller andConnolly, JJ., concur.