People v. Biggs

Appellate Division of the Supreme Court of New York

People v. Biggs

298 A.D.2d 398, 751 N.Y.S.2d 222, 2002 N.Y. App. Div. LEXIS 9412

Appellate Division of the Supreme Court of the State of New York·Decided October 7, 2002·Published·Cited by 1 cases

Opinion

—Appeal by the defen[399] dant from a judgment of the Supreme Court, Kings County (Marrus, J.), dated October 4, 2000, convicting him of manslaughter in the first degree (two counts), upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Contrary to the defendant’s contention, since the crime of manslaughter in the first degree “was neither contained in the original indictment nor considered as a lesser included offense, the defendant was [not] implicitly acquitted of that crime as a consequence of his first trial” (People v Oglesby, 174 AD2d 761, 762). Accordingly, the defendant’s prosecution for manslaughter in the first degree was not barred by the constitutional prohibition against double jeopardy.

The defendant’s remaining contention is unpreserved for appellate review (see CPL 470.05 [2]; People v Dodson, 48 NY2d 36, 38), and we decline to reach it in the exercise of our interest of justice jurisdiction. Santucci, J.P., S. Miller, Goldstein and Townes, JJ., concur.

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—Appeal by the defen[399] dant from a judgment of the Supreme Court, Kings County (Marrus, J.), dated October 4, 2000, convicting him of manslaughter in the first degree (two counts), upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Contrary to the defendant’s contention, since the crime of manslaughter in the first degree “was neither contained in the original indictment nor considered as a lesser included offense, the defendant was [not] implicitly acquitted of that crime as a consequence of his first trial” (People v Oglesby, 174 AD2d 761, 762). Accordingly, the defendant’s prosecution for manslaughter in the first degree was not barred by the constitutional prohibition against double jeopardy.

The defendant’s remaining contention is unpreserved for appellate review (see CPL 470.05 [2]; People v Dodson, 48 NY2d 36, 38), and we decline to reach it in the exercise of our interest of justice jurisdiction. Santucci, J.P., S. Miller, Goldstein and Townes, JJ., concur.

People v. Biggs, 298 A.D.2d 398, 751 N.Y.S.2d 222, 2002 N.Y. App. Div. LEXIS 9412 (N.Y. Ct. App. 2002).

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