People v. Perry

• Decision Date: 01 February 2011
• Citation: 916 N.Y.S.2d 141,81 A.D.3d 665
• Parties: The PEOPLE, etc., respondent, v. James PERRY, appellant.
• Court: New York Supreme Court — Appellate Division

916 N.Y.S.2d 141 81 A.D.3d 665 The PEOPLE, etc., respondent, v. James PERRY, appellant. Supreme Court, Appellate Division, Second Department, New York. Feb. 1, 2011.

Lynn W.L. Fahey, New York, N.Y. (Chadbourne & Parke, LLP [Thomas E. Butler and Francesca J. Perkins], of counsel), for appellant.

Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Thomas M. Ross, and Goodwin Procter, LLP [Maryana Zubok], of counsel), for respondent.

WILLIAM F. MASTRO, J.P., MARK C. DILLON, RANDALL T. ENG, and SANDRA L. SGROI, JJ.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Marrus, J.), rendered February 19, 2008, convicting him of criminally negligent homicide 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 criminal possession of a weapon in the second degree and vacating the sentence imposed thereon; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for a new trial on that count.

The defendant was indicted for murder in the second degree, manslaughter in the first degree, manslaughter in the second degree, criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree, and criminal possession of a weapon in the fourth degree. At the charge conference, the Supreme Court agreed to charge the jury on the crimes of murder in the second degree, manslaughter in the first degree, manslaughter in the second degree, criminally negligent homicide, and criminal possession of a weapon in the second degree. The defendant requested, inter alia, that the Supreme Court also submit the lesser-included offense of criminal possession of a weapon in the fourth degree to the jury. The Supreme Court denied the defendant's request. The defendant was acquitted of murder in the second degree, manslaughter in the first degree, and manslaughter in the second degree, and convicted of criminally negligent homicide and criminal possession of a weapon in the second degree.

On appeal, the defendant contends that the Supreme Court erred in refusing to charge criminal possession of a weapon in the fourth degree, as a lesser-included offense of criminal possession of a weapon in the second degree to the jury, based upon a reasonable view of the evidence that the shooting was not intentional and the defendant did not possess...