People v. Thomas

57 A.D.2d 966, 394 N.Y.S.2d 827, 1977 N.Y. App. Div. LEXIS 12251

Opinion

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered January 7, 1975, convicting him of manslaughter in the first degree, upon a jury verdict, and imposing sentence. Judgment reversed, on the law, and new trial ordered. No questions of fact have been presented for review. Notwithstanding defense counsel’s timely request that the court charge the jury as to the elements of manslaughter in the second degree and the defense of justification, the jury was instructed to consider only the crimes of common-law murder, felony murder and manslaughter in the first degree. A fair view of the facts would have permitted the jury to find defendant guilty of manslaughter in the second degree, or to credit his defense of justification. Accordingly, it was error for the trial court to have denied his request to charge manslaughter in the second degree (see People v Murray, 40 NY2d 327; People v Tai, 39 NY2d 894; People v Usher, 34 NY2d 600), and to have denied his request to charge the defense of justification (see People v Steele, 26 NY2d 526; People v Benjamin, 47 AD2d 861). With commendable candor, the District Attorney concedes that the Trial Justice should have charged manslaughter in the second degree and the defense of justification. Martuscello, J. P., Cohalan, Damiani and Titone, JJ., concur.