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THE SENTENCE FOR MANSLAUGHTER SHOULD NOT HAVE BEEN BASED UPON THE INTENT TO KILL WHICH IS NOT AN ELEMENT OF THE CRIME; THE SENTENCES FOR MANSLAUGHTER AND POSSESSION OF A WEAPON SHOULD NOT HAVE BEEN IMPOSED CONSECUTIVELY; REMANDED FOR RESENTENCING (FIRST DEPT).

The First Department, remanding the matter for resentencing, determined the judge improperly based the sentence for manslaughter on the belief defendant intended to kill the victim. Intent to kill is not an element of manslaughter. It is an element of murder second degree. Defendant was acquitted of murder second degree. In addition, the judge should not have imposed consecutive sentences for manslaughter and possession of a weapon:

… [T]he court improperly based the sentence on the manslaughter conviction on its stated belief that defendant intended to kill the victim. Intent to kill is an element of murder in the second degree, of which defendant was acquitted, and not manslaughter in the first degree, of which defendant was convicted … . Because the sentence was based on conduct of which defendant had been acquitted, resentencing on the manslaughter conviction is required … . Although defendant’s challenge to this sentence is unpreserved, we reach it in the exercise of our interest of justice power … .

… [t]he imposition of consecutive sentences on the conviction for manslaughter and the conviction for simple possession of a weapon under Penal Law § 265.03(3) was improper. The sentences should have run concurrently, since the People did not demonstrate that the act of weapon possession was separate from the act of manslaughter … . There was no evidence presented at the trial establishing that defendant possessed the firearm before shooting the victim  … . People v Anonymous, 2023 NY Slip Op 05990, First Dept 11-21-23

Practice Point: The defendant was acquitted of second degree murder and convicted of manslaughter. The judge erroneously sentence defendant based on the belief defendant intended to kill the victim. But intent to kill is not an element of manslaughter. Resentencing was required.

Practice Point: There was no evidence the possession of a weapon by defendant was separate from the conduct underlying the manslaughter conviction. Therefore the sentences should not have been imposed consecutively.

 

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