Opinion
January 29, 1987
Appeal from the Supreme Court, Bronx County (Dennis Edwards, Jr., J.).
The defendant was indicted, charged with murder in the second degree, criminal possession of a weapon in the second degree, and criminal use of a firearm in the first degree, in that on July 17, 1982, he intentionally caused the death of one Victor Ortega by shooting him with a loaded pistol. The defendant testified, as the sole witness on his own behalf, that the victim assaulted him with a gun and that the gun "went off" while they struggled for it. The trial court refused defendant's request to instruct the jury on the lesser included offense of manslaughter in the second degree. The jury was unable to reach a verdict on the murder charge and found the defendant guilty of manslaughter in the first degree. Defendant is presently incarcerated, serving a sentence of 10 to 20 years' imprisonment.
Viewing the evidence in the light most favorable to defendant, as we must in determining whether, under a reasonable view of the evidence, the jury could find that defendant committed the lesser offense but not the greater (People v Martin, 59 N.Y.2d 704), we conclude that defendant was entitled to have the jury charged on manslaughter in the second degree (Penal Law § 125.15) as a lesser included offense. Defendant's testimony, if believed by the jury, would have supported a conviction for manslaughter in the second degree. As the Court of Appeals stated in a similar case, People v. Tai ( 39 N.Y.2d 894, 895): "[T]he jury could reasonably have believed defendant's claim that he was not the initial aggressor but only attempted to repel the victim's attack upon him, and at the same time accept the evidence that defendant, at some point during the struggle with the victim, inflicted fatal wounds on her. Thus, the jury might have found that defendant acted recklessly and therefore committed acts constituting manslaughter in the second degree (Penal Law, § 125.15), but did not act with the intent to cause serious physical injury as required by manslaughter in the first degree (Penal Law, § 125.20; People v. Asan [ 22 N.Y.2d 526, 532]; see, also, People v. Stanfield, 36 N.Y.2d 467, 471-472)."
Nothing remains to support further prosecution under the pending indictment since the murder count was dismissed at the end of the trial, based upon the jury's verdict, convicting the defendant of manslaughter in the first degree. The District Attorney must seek a new indictment to retry the defendant for manslaughter in the first and second degrees. (People v. Mayo, 48 N.Y.2d 245, 253.) In light of the foregoing, it is unnecessary to reach defendant's remaining contentions.
Concur — Murphy, P.J., Carro, Asch, Milonas and Rosenberger, JJ.