People v. Irizarry

88 A.D.3d 1013, 931 N.Y.2d 882

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 25, 2011
• Status: Published

Opinion

Where, as here, “a court charges the next lesser included offense of the crime alleged in the indictment, but refuses to charge lesser degrees than that . . . the defendant’s conviction of the crime alleged in the indictment forecloses a challenge to the court’s refusal to charge the remote lesser included offenses” (People v Boettcher, 69 NY2d 174, 180 [1987]; see People v Green, 5 NY3d 538, 545 [2005]; People v Alston, 77 AD3d 762, 762 [2010]). “Thus, review of the defendant’s challenge to the [Supreme] Court’s refusal to charge manslaughter in the second degree as a lesser-included offense of murder in the second degree is foreclosed by the jury verdict finding him guilty of murder in the second degree, the crime alleged in the indictment, and its implicit rejection of the lesser-included offense of manslaughter in the first degree” (People v Gorham, 72 AD3d 1108, 1109 [2010]; see People v Johnson, 87 NY2d 357, 361 [1996]; People v Alston, 77 AD3d at 762). Mastro, J.E, Eng, Belen and Hall, JJ., concur.