People v. Butler

86 A.D.2d 811, 452 N.Y.S.2d 582, 1982 N.Y. App. Div. LEXIS 15438

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 18, 1982
• Status: Published

Opinions

Judgment, Supreme Court, Bronx County (Schlesinger, J.), rendered April 3,1980, convicting defendant, after a jury trial, of manslaughter in the first degree, reversed, on the law, and the indictment dismissed. The defendant was charged in the indictment with the crime of murder in the second degree based upon the allegation that on February 11, 1979, while acting in concert with one Amos Attiko, he intentionally shot Daryl Wilson to death. At the close of the defendant’s case, the prosecutor asked the court to charge manslaughter in the first degree as a lesser included offense. Defense counsel objected to such charge on the ground that the evidence demonstrated that a murder had occurred and a manslaughter charge might invite a compromise verdict. The court instructed the jury to consider the manslaughter charge, but only if defendant was acquitted of the murder charge. The jury acquitted defendant of murder in the second degree, but convicted him of manslaughter in the first degree. The difference between these two homicides is one of intent: murder in the second degree requires an intent to kill while manslaughter in the first degree requires an intent to cause serious physical injury. On this record, no reasonable view of the evidence supports a finding that the defendant committed the lesser offense, but did not commit the greater. A review of the evidence shows an intent to cause death and not just serious injury. Three shots were fired and, according to the prosecutor’s main witness, Justine Attiko, they were fired at short intervals and not in rapid succession. The deceased was shot twice at relatively close range, once in the back and once in the head. This evidence demonstrates an intent to kill rather than an intent to cause serious injury. In these circumstances the court erred in charging manslaughter in the first degree as a lesser included crime of murder in the second degree. “The court improperly gave the jury an opportunity to compromise on the facts, in their reluctance to convict defendant of the greater crime” (People vDugarm, 49 AD2d 674, 675). Since the jury acquitted defendant of the charge of murder in the second degree, and the evidence shows that defendant is not guilty of manslaughter in the first degree, the indictment must be dismissed. Concur — Kupferman, J. P., Lupiano and Fein, JJ.