People v. Wilder

132 A.D.2d 683, 518 N.Y.S.2d 54, 1987 N.Y. App. Div. LEXIS 49226

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Aiello, J.), rendered September 30, 1985, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Any error in the trial court’s refusal to charge manslaughter in the second degree as a lesser included offense of murder in the second degree was harmless, since the jury was given the lesser included offense of manslaughter in the first degree and, nonetheless, convicted the defendant of the top count (see, People v Granger, 187 NY 67, 73; People v Richette, 33 NY2d 42). Any speculation that the jury might have opted for the lower offense was "dispelled by the fact that the defendant was actually found guilty of second degree [murder]; when the jury excluded from the case the alternative of [manslaughter in the first degree], 'all [lesser] degrees were necessarily eliminated’ ” (People v Richette, supra, at 45-46, quoting from People v Brown, 203 NY 44, 51-52; People v Boettcher, 69 NY2d 174).

We have examined the defendant’s remaining contentions, including those pertaining to his withdrawal of his guilty plea, and find them to be without merit. Mangano, J. P., Eiber, Sullivan and Harwood, JJ., concur.