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FAILURE TO CHARGE THE JURY ON LESSER INCLUDED OFFENSES REQUIRED REVERSAL.

The Second Department, reversing defendant’s conviction, determined the facts elicited at this murder trial, viewed in the light most favorable to the defendant, warranted charges to the jury on manslaughter second and criminally negligent homicide. Because the possession of a weapon charge was directly related to the homicide charge, a new trial on the criminal possession of a weapon count was also necessary:

Under the facts adduced at the trial, the Supreme Court erred in failing to charge manslaughter in the second degree … and criminally negligent homicide … when requested by the defendant. Although a witness testified that, in the course of a physical altercation, the defendant pulled a gun from his back waist area and shot the decedent, the defendant testified that the decedent brandished the gun, that the two men struggled over the weapon, and that the gun accidentally went off during the struggle. Viewed in the light most favorable to the defendant, there was a reasonable view of the evidence that the defendant may have been guilty of the lesser crimes and not the greater … . Therefore, the failure to charge manslaughter in the second degree and criminally negligent homicide compromised the defendant’s right to a fair trial.

In addition, the failure to charge manslaughter in the second degree, which is defined as “recklessly” causing the death of another person …, had a prejudicial effect with respect to the defendant’s conviction of criminal possession of a weapon in the second degree, which is defined as possession of “any loaded firearm” … . The defendant’s possession of the weapon is factually related to the shooting and, thus, given the underlying factual relationship between the crimes, the defendant is entitled to a new trial on the count of criminal possession of a weapon in the second degree … . People v Davis, 2017 NY Slip Op 01223, 2nd Dept 2-15-17

 

CRIMINAL LAW (FAILURE TO CHARGE THE JURY ON LESSER INCLUDED OFFENSES REQUIRED REVERSAL)/LESSER INCLUDED OFFENSES (CRIMINAL LAW, FAILURE TO CHARGE THE JURY ON LESSER INCLUDED OFFENSES REQUIRED REVERSAL)/JURY INSTRUCTIONS (CRIMINAL LAW, FAILURE TO CHARGE THE JURY ON LESSER INCLUDED OFFENSES REQUIRED REVERSAL)

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