Opinion
No. 2004-04753.
March 20, 2007.
Appeal by the defendant from a judgment of the County Court, Rockland County (Resnik, J.), rendered April 29, 2004, convicting him of manslaughter in the first degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree, upon a jury verdict, and sentencing him to concurrent determinate terms of imprisonment of 25 years for manslaughter in the first degree, 15 years for criminal possession of a weapon in the second degree, and 7 years for criminal possession a weapon in the third degree.
Phillip J. Murphy, Nanuet, N.Y., for appellant.
Michael E. Bongiorno, District Attorney, New City, N.Y. (Argiro Kosmetatos of counsel), for respondent.
Before: Crane, J.P., Florio, Fisher and Dickerson, JJ., concur.
Ordered that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the term of imprisonment for manslaughter in the first degree from 25 years to 18 years and criminal possession of a weapon in the second degree from 15 years to 10 years; as so modified, the judgment is affirmed.
The trial court's failure to charge the lesser-included offense of criminally negligent homicide was not error. Because the court charged the lesser-included offense of manslaughter in the second degree, and the defendant was convicted of man-slaughter in the first degree, "the court's refusal to charge the more remote lesser-included offense of criminally negligent homicide cannot be a basis for reversal" ( People v McMurry, 30 AD3d 444).
The sentence imposed was excessive to the extent indicated herein ( see People v Suitte, 90 AD2d 80).
The defendant's remaining contention is without merit.