People v. Hernandez

78 A.D.2d 555, 432 N.Y.S.2d 22, 1980 N.Y. App. Div. LEXIS 12908

Opinion

The defendant appeals (1) from a judgment of the Supreme Court, Kings County, rendered December 16, 1977, convicting him of murder in the second degree, upon his plea of guilty, and imposing sentence and (2) by permission, from an order of the same court, entered July 19, 1978, denying his motion to vacate the judgment pursuant to CPL 440.10. Judgment modified, on the law, by reducing the conviction to manslaughter in the second degree. As so modified judgment affirmed and case remanded to Criminal Term for resentencing. Order affirmed. The defendant’s guilt of murder in the second degree was not proven beyond a reasonable doubt. The People provided no proof of the defendant’s intent to kill or seriously injure anyone. The evidence did demonstrate, however, that the defendant acted with recklessness. Thus the necessary elements of the crime of manslaughter in the second degree were proven and the conviction is reduced accordingly. We have examined the defendant’s other contentions and find them to be without merit or without prejudice in view of the modification. Titone, J. P., Mangano, Rabin and Gulotta, JJ., concur.