People v. Alamo

• Decision Date: 17 March 1987
• Citation: 128 A.D.2d 441,512 N.Y.S.2d 831
• Parties: The PEOPLE of the State of New York, Respondent, v. Luis ALAMO, a/k/a Louis Alamo, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 831

512 N.Y.S.2d 831

128 A.D.2d 441

The PEOPLE of the State of New York, Respondent, v. Luis ALAMO, a/k/a Louis Alamo, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

March 17, 1987.

A.M. Digregorio, J. Gutman, New York City, for respondent.

S.K. Wetzel, New York City, for defendant-appellant.

Before SANDLER, J.P., and CARRO, ASCH, ROSENBERGER and ELLERIN, JJ.

MEMORANDUM DECISION.

Judgment of the Supreme Court, Bronx County (Fred W. Eggert, J.), rendered October 30, 1985, convicting defendant of murder in the second degree upon a jury verdict and sentencing him to a term of imprisonment of 20 years to life, is unanimously reversed, on the law and on the facts, and the matter remanded for a new trial.

On October 14, 1984, Andres Martinez was shot seven times. Defendant was arrested on November 1, 1984 at the apartment of a girlfriend, Blanca Helfgott. Found in the apartment was a .38 calibre automatic pistol which, a ballistics expert testified, was the gun used in the killing of Martinez. There was also testimony from a witness, who saw defendant running from the scene of the crime with a gun, that defendant threatened persons who had gotten in his way, asking: "Who else wants a shot in the head?" Blanca Helfgott testified that defendant told her on the night of the killing that he had killed a man. He explained that five men, some armed with shotguns and revolvers, had attempted to rob him and that he had to defend himself. Helfgott testified that defendant later told her after his arrest that he had been paid $5,000 to kill Martinez.

Defendant testified that he was a cocaine seller and had been told on October 13th that several men were planning to rob him. Later that night, after midnight, he was stopped by several men who were armed, one with a shotgun and another with a revolver. When the men spread out, defendant, fearful of being surrounded, aimed toward them, fired five or six shots, and ran. Defendant said he was not an expert with the pistol and was surprised at how fast it discharged. He denied, inter alia, killing Martinez for money or shooting him as he lay on the ground. One Maria Ramos confirmed defendant's account of the robbery.

Lillian Salicrup testified that she was the mother of defendant's child and that Helfgott had said, three months after the shooting, after ascertaining that defendant was the father of Salicrup's child, that she knew "one way to destroy him and make you suffer".

The attorney for defendant asked the trial court to submit to the jury a count of manslaughter in the first degree (intent to cause serious physical injury) as a lesser included offense of the crime of murder in the second degree. The court refused to give the charge on the lesser offense observing that, by defendant's own testimony, he was running away and firing at the alleged robbers at the same time and that there was no evidence that these individuals were chasing or firing at him. The court also noted the fact that Martinez had been shot seven times in various parts of the body.

A lesser included offense must be submitted to the jury when the defendant shows (1) that it is impossible to commit the greater crime without concomitantly, by the same conduct, committing the lesser offense; and (2) that there is a reasonable view of the evidence in the particular case which would support a finding that the defendant committed the lesser offense, but not the greater (People v. Glover, 57 N.Y.2d 61, 63, 453 N.Y.S.2d 660, 439 N.E.2d 376).

The test of whether a "lesser included offense" is to be submitted is certainly not that it is probable that the crime was actually committed or even that there is substantial evidence to support such a view. It suffices that it is supportable on a...