People v. Garson

97 A.D.2d 518, 468 N.Y.S.2d 29, 1983 N.Y. App. Div. LEXIS 20118

Opinion

Appeal by defendant from a judgment of the Supreme Court, Queens County (O’Brien, J.), rendered February 17, 1983, convicting him of murder in the second degree, upon a jury verdict, and criminal possession of a weapon in the third degree, upon his plea of guilty, and imposing sentences. Judgment modified, on the law, by reversing the conviction for murder in the second degree, and vacating the sentence imposed thereon. As so modified, judgment affirmed, and new trial ordered as to the charge of murder in the second degree. In light of the trial evidence that defendant may have been intoxicated at the time he shot his victim, the court correctly instructed the jury with respect to section 15.25 of the Penal Law, and explained that intoxication could negate the intent element of the crimes charged. However, it was reversible error to refuse to charge manslaughter in the second degree (Penal Law, § 125.15) as a lesser included count of murder in the second degree because the jury could have concluded that defendant acted recklessly rather than intentionally in causing the death of his victim (see People v Lawrence, 78 AD2d 702; People v Jenkins, 93 AD2d 868). The defendant was also convicted of criminal possession of a weapon in the third degree, upon his plea of guilty. His motion to suppress the weapon, which was not'the murder weapon and was not introduced in evidence at the homicide trial, was properly denied. Accordingly, this conviction must remain undisturbed. We find no merit in defendant’s other contentions. Titone, J. P., Lazer, Thompson and Boyers, JJ., concur.