Opinion
No. 2017-11882 Ind. No. 1451/16
07-28-2021
The People, etc., respondent, v. Brian Williams, appellant.
Paul Skip Laisure, New York, NY (De Nice Powell of counsel), for appellant, and appellant pro se. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Ann Bordley, and Denise Pavlides of counsel), for respondent.
Argued - February 4, 2021
D67038 I/htr
Paul Skip Laisure, New York, NY (De Nice Powell of counsel), for appellant, and appellant pro se.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Ann Bordley, and Denise Pavlides of counsel), for respondent.
REINALDO E. RIVERA, J.P., FRANCESCA E. CONNOLLY, VALERIE BRATHWAITE NELSON, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Dena E. Douglas, J.), rendered October 3, 2017, convicting him of manslaughter in the first degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is modified, on the law, by vacating the conviction of manslaughter in the first degree and the sentence imposed thereon, without prejudice to the People to re-present any appropriate charges to another grand jury (see People v Gonzalez, 61 N.Y.2d 633, 635; People v Beslanovics, 57 N.Y.2d 726, 727); as so modified, the judgment is affirmed.
The defendant correctly contends that the Supreme Court erred in refusing to charge manslaughter in the second degree as a lesser included offense of murder in the second degree. Contrary to the People's contention, this argument is preserved for appellate review (see CPL 470.05[2]; People v Smith, 22 N.Y.3d 462, 465). "A lesser included offense of a crime charged in the indictment 'must be charged . . . if, under any reasonable view of the evidence as seen in the light most favorable to the defendant, the jury could find that defendant committed the lesser offense but not the greater'" (People v Daniel, 37 A.D.3d 731, 732, quoting People v Randolph, 81 N.Y.2d 868, 869). Here, the court erred in declining to charge manslaughter in the second degree as a lesser included offense of intentional murder (see People v Daniel, 37 A.D.3d at 732; People v Morel, 213 A.D.2d 497, 498). Under the circumstances of this case, a reasonable view of the evidence as seen in the light most favorable to the defendant would support the conclusion that the defendant acted recklessly rather than intentionally (see People v Daniel, 37 A.D.3d at 732; People v Alvarez, 201 A.D.2d 487, 488; see also People v McMillon, 31 A.D.3d 136, 142; cf. People v Wright, 54 A.D.3d 695, 696-697). "In view of the foregoing, the defendant's conviction of manslaughter in the first degree must be vacated, without prejudice to the People re-presenting any appropriate charge to another grand jury" (People v Daniel, 37 A.D.3d at 732; see People v Gonzalez, 61 N.Y.2d at 635; People v Beslanovics, 57 N.Y.2d at 727).
The defendant's contention, raised in his pro se supplemental brief, that he was deprived of the effective assistance of counsel, is without merit. The defendant was not deprived of the effective assistance of counsel under the New York Constitution, as, viewed in totality, the record reflects that defense counsel provided meaningful representation (see People v Baldi, 54 N.Y.2d 137, 146-147). Further, the defendant was not deprived of the effective assistance of counsel under the United States Constitution (see Strickland v Washington, 466 U.S. 668).
The defendant's remaining contentions, including those raised in his pro se supplemental brief, either are without merit or need not be reached in light of our determination.
RIVERA, J.P., CONNOLLY, BRATHWAITE NELSON and CHRISTOPHER, JJ., concur.