| People v Cherry |
| 2018 NY Slip Op 05190 [163 AD3d 706] |
| July 11, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Luis A. Cherry, Appellant. |
Paul Skip Laisure, New York, NY (Denise A. Corsí of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, and Eric C. Washer of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kenneth C.Holder, J.), rendered November 5, 2014, convicting him of murder in the second degree andcriminal possession of a weapon in the second degree (two counts), upon a jury verdict, andimposing sentence.
Ordered that the judgment is modified, on the law, by vacating the conviction of murder inthe second degree and the sentence imposed thereon; as so modified, the judgment is affirmed,and a new trial is ordered on the count of the indictment charging the defendant with murder inthe second degree.
In October 2010, the defendant killed the victim on the doorstep of the victim's residence byshooting him once in the head. The defendant later admitted to the police that he had gone to thevictim's residence, armed with a loaded gun, intending to kill the victim. The defendant also toldthe police that after he pointed the gun at the victim, the victim grabbed the gun and the two menstruggled for it. According to the defendant, the gun "went off" while the defendant was trying topull back his hand with his finger on the trigger. The defendant said that he did not intend to pullthe trigger. Although the defendant told the police that he had gone to the victim's residence onlybecause another person had threatened to kill him and his mother if he did not kill the victim, thedefendant did not raise a duress defense at trial. At trial, the Supreme Court declined thedefendant's request that the charge of manslaughter in the second degree (reckless manslaughter)be submitted to the jury as a lesser included offense of murder in the second degree (intentionalmurder). The defendant was convicted of murder in the second degree and two counts of criminalpossession of a weapon in the second degree.
On appeal, the defendant contends that the prosecutor deprived him of a fair trial by makingimproper comments to the jury and by introducing evidence and eliciting testimony that wasirrelevant to the issues at trial and was intended only to evoke sympathy for the victim and hisfamily. The defendant's challenges to the propriety of the prosecutor's conduct are, for the mostpart, unpreserved for appellate review (see CPL 470.05 [2]). Moreover, contrary to thedefendant's contention, the recording of a 911 call placed by a neighbor and the footage andaudio from [*2]surveillance cameras outside of that neighbor'shome were properly introduced into evidence. We agree, however, that the prosecutor'scomments in his opening statement about the grand jury's indictment were improper. Theprosecutor's comments in his opening statement about the victim and his family, which couldonly have been intended to evoke the jury's sympathy, were also improper (see People v Casiano, 148 AD3d1044 [2017]; People v Holiday,142 AD3d 625, 626 [2016]; Peoplev Johnson, 3 AD3d 581, 582 [2004]; People v Walters, 251 AD2d 433 [1998]).Further, the prosecutor elicited certain testimony from the medical examiner and the victim'sfather about the victim's personal background and the victim's family that was irrelevant to theissues at trial, and was likewise intended to evoke the jury's sympathy (see People v Redd, 141 AD3d 546,551 [2016]; People v Holiday, 142 AD3d at 626; People v Royster, 43 AD3d 758, 759 [2007]). Nonetheless, underthe circumstances of this case, the prosecutor's improprieties did not deprive the defendant of afair trial, and any other error in this regard was harmless, as there was overwhelming evidence ofthe defendant's guilt and no significant probability that any error contributed to his convictions(see People v Crimmins, 36 NY2d 230, 237, 242 [1975]; People v Spigner, 153 AD3d 1289,1290 [2017]).
The defendant contends that the Supreme Court erred in denying his request to chargemanslaughter in the second degree as a lesser included offense of murder in the second degree.We agree. A party seeking submission of a charge as a lesser included offense must satisfy atwo-pronged inquiry (see People vRivera, 23 NY3d 112, 120 [2014]). First, the lesser offense must satisfy the legaldefinition of a lesser included offense: "When it is impossible to commit a particular crimewithout concomitantly committing, by the same conduct, another offense of lesser grade ordegree, the latter is, with respect to the former, a 'lesser included offense' " (CPL 1.20[37]; see People v Rivera, 23 NY3d at 120; People v Glover, 57 NY2d 61, 63[1982]; People v Lowery, 127 AD3d1109, 1110 [2015]). Second, there must be a reasonable view of the trial evidence that thedefendant committed the lesser included offense, but did not commit the greater offense (seeCPL 300.50 [1]; People v Rivera, 23 NY3d at 120; People v Lowery, 127AD3d at 1110). In determining whether there is a reasonable view of the evidence supportingsubmission of the lesser included offense, the evidence must be viewed in the light mostfavorable to the defendant (see People v Rivera, 23 NY3d at 120-121; People vMartin, 59 NY2d 704, 705 [1983]). Here, the court should have granted the defendant'srequest to charge manslaughter in the second degree (reckless manslaughter) as a lesser includedoffense of murder in the second degree (intentional murder). Reckless manslaughter is a lesserincluded offense of intentional murder in the second degree (see People v Rivera, 23NY3d at 120; People v Green, 56 NY2d 427, 433 [1982]; People v Boyd, 60 AD3d 779, 780[2009]). Moreover, there is a reasonable view of the evidence that the defendant did notintentionally pull the trigger at the time the gun was fired (see People v Davis, 147 AD3d 971, 972 [2017]; People v Lee, 116 AD3d 493, 495[2014]; People v Bryant, 74 AD3d1221, 1222 [2010]; People v Rivera, 184 AD2d 288, 291 [1992]). Accordingly, theconviction of murder in the second degree must be vacated, and a new trial held on that count ofthe indictment.
The defendant's sentences on the convictions of criminal possession of a weapon in thesecond degree were not excessive (see People v Suitte, 90 AD2d 80 [1982]).
The defendant's remaining contention is without merit. Scheinkman, P.J., Balkin, Austin andHinds-Radix, JJ., concur.