People v. Castro
| Decision Date | 22 June 1987 |
| Citation | 131 A.D.2d 771,516 N.Y.S.2d 966 |
| Parties | The PEOPLE, etc., Respondent, v. Jose CASTRO, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Philip L. Weinstein, New York City (Robert S. Dean, of counsel), for appellant, and appellant pro se.
Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Nikki Kowalski and Leonard Joblove, of counsel), for respondent.
Before BRACKEN, J.P., and BROWN, RUBIN and SPATT, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Greenberg, J.), rendered August 26, 1985, convicting him of manslaughter in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is reversed, on the law, and the indictment is dismissed, without prejudice to the People to re-present any appropriate charges to another Grand Jury (see, People v. Beslanovics, 57 N.Y.2d 726, 454 N.Y.S.2d 976, 440 N.E.2d 1322). Upon service upon him of a copy of this decision and order, with notice of entry, the official having custody of the defendant's person is directed to produce him, forthwith, before the Supreme Court, Kings County, at which time that court shall issue a securing order pursuant to CPL 470.45, either releasing the defendant on his own recognizance, or fixing bail, or committing him to the custody of the New York City Department of Correctional Services pending resubmission of the case to the Grand Jury and the Grand Jury's disposition thereof (cf., CPL 210.45[9] ). Such securing order shall remain in effect until the first to occur of any of the following: (a) a statement to the court by the People that they do not intend to resubmit the case to a Grand Jury, (b) arraignment of the defendant upon an indictment filed as a result of resubmission of the case to a Grand Jury, (c) the filing with the court of a Grand Jury dismissal of the case following resubmission thereof, or (d) the expiration of a period of 45 days from the date of this decision and order, provided that such period may, for good cause shown, be extended by the Supreme Court, Kings County, to a designated subsequent date if such be necessary to accord the People reasonable opportunity to resubmit the case to a Grand Jury.
The defendant was indicted for the crime of murder in the second degree. At his trial, the defendant asserted the defense of justification (see, Penal Law § 35.15). The trial court submitted the murder charge to the jury, along with the lesser included offenses of manslaughter in the first and second degrees. The court properly instructed the jury that it was to consider each lesser included offense only after it had acquitted the defendant of its respective greater offense (see, People v. Boettcher, 69 N.Y.2d 174, 513 N.Y.S.2d 83, 505 N.E.2d 594). With regard to the justification defense, the court instructed the jury that in the event it found that the People had proven the elements of murder in the second degree, it was then to consider justification with respect to that charge and, if the defense had not been disproved by the People, it was to acquit and proceed to consideration of the lesser included offense of manslaughter in the first degree; if the jury found that the elements of manslaughter in the first degree had been established, it was then to consider justification with respect to that charge, and, if the defense had not been disproved, it was to acquit and consider the lesser included offense of manslaughter in the second degree; however, in the event that the People proved the elements of manslaughter in the second degree, it was not to consider the justification defense. There was no objection to this portion of the charge.
In the course of its deliberations, the jury requested certain further instructions. In delivering its supplemental charge, the court retracted a portion of its prior instructions and correctly instructed the jury that it could consider the defense of justification with respect to each of the three charges submitted, including the charge of manslaughter in the second degree (see, People v. Huntley, 87 A.D.2d 488, 452 N.Y.S.2d 952, affd. 59 N.Y.2d 868, 465 N.Y.S.2d 929, 452 N.E.2d 1257).
After further deliberations, the jury returned the following verdict: "We, the jury, have found the defendant guilty of manslaughter in the first degree, but justified as self-defense". The court then instructed the jury that a finding of justification was, in effect, a finding of not guilty, and that if the jury intended to acquit the defendant of manslaughter in the first degree, it should so indicate and then consider manslaughter in the...
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...of not guilty on all counts if it found defendant not guilty by reason of justification on the top count (see generally People v. Castro, 131 A.D.2d 771, 773–774, 516 N.Y.S.2d 966 ). Defendant, however, failed to request such an instruction or object to the instruction as given and thus fai......
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