People v. Butler

196 A.D.2d 659, 601 N.Y.S.2d 711

Opinions

Appeal by the defendant from a judgment of the County Court, Westchester County (Lange, J.), rendered April 5, 1991, convicting him of murder in the second degree and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is reversed, on the law, and a new trial is ordered. No questions of fact were raised or considered.

Under the circumstances of this case, we conclude that, while the County Court properly refused to charge the lesser-included offense of manslaughter in the second degree (see, Penal Law § 125.15 [1] [mental state: conscious disregard of substantial and unjustifiable risk of death]; People v Weems, 105 AD2d 763), it erred in refusing to charge the lesser-included offense of manslaughter in the first degree (see, Penal Law § 125.20 [1] [mental state: intent to cause serious physical injury]; People v Aviles, 80 NY2d 997).

We have examined the defendant’s remaining contention and find it to be without merit. Bracken, J. P., Rosenblatt and O’Brien, JJ., concur.