People v. Jackson
| Decision Date | 09 May 1988 |
| Citation | 528 N.Y.S.2d 158,140 A.D.2d 458 |
| Parties | The PEOPLE, etc., Respondent, v. Lorna JACKSON, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Lawrence J. Gross, Elmhurst, for appellant.
John J. Santucci, Dist. Atty., Kew Gardens (Randi Fleishman, of counsel), for respondent.
Before MOLLEN, P.J., and MANGANO, BROWN and HARWOOD, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Chetta, J.), rendered March 1, 1985, convicting her of murder in the second 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 imposing sentence.
ORDERED that the judgment is modified, on the law by (1) reversing the conviction of criminal possession of a weapon in the third degree, vacating the sentence imposed thereon and dismissing that count of the indictment, (2) reversing the conviction of murder in the second degree, and (3) vacating the sentence imposed on the conviction of criminal possession of a weapon in the second degree; as so modified the judgment is affirmed, and the matter is remitted to the Supreme Court, Queens County, for a new trial on the charge of murder in the second degree, and, upon the disposition of that charge, for resentencing on the conviction of criminal possession of a weapon in the second degree. Findings of fact have been considered and are determined to have been established.
The defendant argues, inter alia, that the trial court committed reversible error when it denied her request to submit to the jury the charge of manslaughter in the first degree as a lesser included offense of murder in the second degree. We agree.
The People's theory at trial was that the defendant, with the intent to cause the death of the deceased, shot and killed him. There is evidence in the record, which includes the defendant's videotaped confession to an Assistant District Attorney, to support the People's theory. However, in the defendant's initial oral confession to the police, she stated, inter alia, that, she "lifted the gun up, activated the safety * * * pointed the gun toward [the deceased] closed her eyes and the gun went off". Under these circumstances, we conclude that there was a reasonable view of the evidence (see, CPL 300.50[1]; People v. Scarborough, 49 N.Y.2d 364, 426 N.Y.S.2d 224, 402 N.E.2d 1127; People v. Glover, 57 N.Y.2d 61, 453 N.Y.S.2d 660, 439 N.E.2d 367) to support a finding by the jury that the defendant committed the lesser included offense of manslaughter in the first degree (Penal Law § 125.20[1], i.e. "[w]ith intent to cause serious physical injury to another person, [s]he causes the death of such person"), and did not commit the greater offense of murder in the second degree (Penal Law § 125.25[1], i.e., "[w]ith intent to cause the death of another person, [s]he causes the death of such person"). Accordingly, in addition to the charge regarding murder in the second degree, the trial court should have submitted to the jury, as a lesser included offense, the charge of manslaughter in the first degree, as requested by the defendant.
The defendant further argues that her confession should have been suppressed because it was obtained as a result, inter alia, of physical abuse, lack of sleep and food, and deceit and trickery. We disagree. The record amply supports...
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