Opinion
07-05-2017
The PEOPLE, etc., respondent, v. Daniel CUATLAL, appellant.
Lynn W.L. Fahey, New York, NY (Benjamin S. Litman of counsel), for appellant. Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and Solomon Neubort of counsel), for respondent.
Lynn W.L. Fahey, New York, NY (Benjamin S. Litman of counsel), for appellant.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and Solomon Neubort of counsel), for respondent.
CHERYL E. CHAMBERS, J.P., JEFFREY A. COHEN, COLLEEN D. DUFFY, and FRANCESCA E. CONNOLLY, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Firetog, J.), rendered December 5, 2012, convicting him of manslaughter in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the People's contention, the defendant preserved for appellate review his argument that criminally negligent homicide should have been charged as a lesser-included offense of manslaughter in the first degree (see CPL 470.05[2] ). However, the contention is without merit.
To be entitled to a charge on a lesser-included offense, a defendant must establish that (1) it was impossible to commit the greater crime without concomitantly committing the lesser offense by the same conduct, and (2) there is a reasonable view of the evidence to support a finding that the defendant committed the lesser offense but not the greater (see CPL 300.50[1] ; People v. James, 11 N.Y.3d 886, 888, 874 N.Y.S.2d 864, 903 N.E.2d 261 ; People v. Van Norstrand, 85 N.Y.2d 131, 135, 623 N.Y.S.2d 767, 647 N.E.2d 1275 ). "In determining whether such a reasonable view exists, the evidence must be viewed in the light most favorable to defendant" ( People v. Martin, 59 N.Y.2d 704, 705, 463 N.Y.S.2d 419, 450 N.E.2d 225 ). A request to charge a lesser-included offense must be granted if there is a reasonable view of the evidence to support it (see People v. Van Norstrand, 85 N.Y.2d at 136, 623 N.Y.S.2d 767, 647 N.E.2d 1275 ).
Contrary to the defendant's contention, under the circumstances of this case, the Supreme Court providently exercised its discretion in denying the defendant's request to charge criminally negligent homicide as a lesser-included offense of manslaughter in the first degree (see People v. Randolph, 81 N.Y.2d 868, 869, 597 N.Y.S.2d 630, 613 N.E.2d 536 ; People v. Bruno, 127 A.D.3d 1101, 1102, 6 N.Y.S.3d 656 ; People v. Hill, 266 A.D.2d 473, 474, 698 N.Y.S.2d 888 ; People v. Holloway, 262 A.D.2d 500, 693 N.Y.S.2d 153 ; People v. Cameron, 244 A.D.2d 350, 351, 663 N.Y.S.2d 657 ; People v. Stephens, 198 A.D.2d 245, 245–246, 603 N.Y.S.2d 514, affd. 84 N.Y.2d 990, 622 N.Y.S.2d 502, 646 N.E.2d 804 ; cf. People v. Heide, 84 N.Y.2d 943, 944, 620 N.Y.S.2d 814, 644 N.E.2d 1370 ; People v. Dragoon, 256 A.D.2d 653, 653–654, 681 N.Y.S.2d 807 ).