People v. Carnegie
| Citation | 74 A.D.2d 651,425 N.Y.S.2d 39 |
| Parties | The PEOPLE, etc., Respondent, v. Ronald CARNEGIE, Appellant. |
| Decision Date | 25 February 1980 |
| Court | New York Supreme Court Appellate Division |
William E. Hellerstein, New York City (Hillard Wiese, New York City, of counsel), for appellant.
Eugene Gold, Dist. Atty., Brooklyn (Lee S. Wasserman, Brooklyn, of counsel), for respondent.
Before HOPKINS, J. P., and MANGANO, RABIN and GULOTTA, JJ.
MEMORANDUM BY THE COURT.
Appeals by the defendant from (1) a judgment of the Supreme Court, Kings County, rendered October 21, 1977, upon resentence, convicting him of attempted murder in the second degree, kidnapping in the second degree, assault in the first and third degrees, and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence, and (2) (by permission) an order of the same court, dated August 23, 1979, which denied his motion to vacate the judgment.
Judgment reversed, as a matter of discretion in the interest of justice, and new trial ordered.
Appeal from the order dismissed as academic in light of the determination on the appeal from the judgment.
The defendant contends that Criminal Term erroneously charged the jury with respect to attempted murder in the second degree. The jury was correctly charged with respect to the elements of intentional murder. However, coupled with these instructions were descriptions of the elements of felony murder and depraved-mind murder (Penal Law, § 125.25, subds. 2, 3), neither of which was germane to the indictment.
Thereafter, during its deliberations, the jury requested the definition of attempted murder in the second degree, and the definition of acting in consort. The court then charged the jury as to mental culpability in terms of an intentional act, a reckless act, and a criminally negligent act, finally stating:
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...instruction constitutes "the last words heard by the jury from the court before the jury reached its verdict" (People v. Carnegie, 74 A.D.2d 651, 425 N.Y.S.2d 39; see also, People v. Hetenyi, 304 N.Y. 80, 86, 106 N.E.2d Defendant's other contentions have been examined and found to be withou......
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