People v. Shepard

155 A.D.2d 881, 547 N.Y.S.2d 487, 1989 N.Y. App. Div. LEXIS 14708

Opinion

— Order unanimously affirmed. Memorandum: Defendant was indicted on charges of manslaughter in the second degree and criminal possession of a weapon in the second degree stemming from the shooting death of his wife. The jury found defendant not guilty of manslaughter by reason of justification. The court then reinstructed the jury on the lesser included crime of criminally negligent homicide as a lesser included crime of manslaughter and resubmitted the case to the jury. Defendant did not object to the resubmission. After the jury returned a verdict of guilty of criminally negligent homicide, defendant brought a motion to set aside the verdict (CPL 330.30 [1]).

The jury, in finding the defendant not guilty of manslaughter in the second degree by reason of justification, is precluded from finding defendant guilty of any lesser charge (see, People v Hoy, 122 AD2d 618, 619). The court, realizing that it had erred in resubmitting the lesser included count of criminally negligent homicide to the jury, granted defendant’s CPL 330.30 motion and set the verdict of criminally negligent homicide aside. The resubmitting of the lesser included count to the jury after a finding of justification on the original manslaughter count would have required a reversal of the judgment of conviction as a matter of law by our court (see, CPL 330.30 [1]). Therefore, the trial court did not abuse its authority in setting aside the verdict. (Appeal from order of Monroe County Court, Maloy, J. — motion to vacate conviction.) Present — Callahan, J. P., Denman, Green, Pine and Balio, JJ.