People v. Aviles

607 N.E.2d 798, 80 N.Y.2d 997, 592 N.Y.S.2d 651, 1992 N.Y. LEXIS 3897

• Court: New York Court of Appeals
• Decided: November 19, 1992
• Status: Published

Opinion

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and a new trial ordered.

The trial court refused defense counsel’s request to instruct the jury in this case concerning lesser-included crimes, particularly manslaughter in the first degree. Defendant was convicted of murder in the second degree and other related crimes, and the Appellate Division affirmed the judgment of conviction. A Justice of the Appellate Division granted leave to appeal to this Court.

The street dispute started at 9:00 p.m. as a verbal exchange between defendant and an individual named Razor, escalated to a chase of Razor and three of his friends by defendant, who was brandishing a knife, and culminated in a multiperson melee on the ground. The homicide victim entered the fray to assist defendant, only to be stabbed twice mortally by defendant.

The lesser-included charge instruction, based on a view of the entire evidence of this street melee, cannot be said as a matter of law to have no reasonable support in the record evidence. Accordingly, the requested instruction should have been given and there should be a new trial.

Acting Chief Judge Simons and Judges Kaye, Titone, Hancock, Jr., and Bellacosa concur in memorandum; Judge Smith taking no part.

Order reversed, etc.