People v. Tai

• Decision Date: 08 June 1976
• Citation: People v. Tai, 386 N.Y.S.2d 395, 39 N.Y.2d 894, 352 N.E.2d 582 (N.Y. 1976)
• Parties: , 352 N.E.2d 582 The PEOPLE of the State of New York, Respondent, v. Claudius Augustus TAI, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 395

386 N.Y.S.2d 395

39 N.Y.2d 894, 352 N.E.2d 582

The PEOPLE of the State of New York, Respondent, v. Claudius Augustus TAI, Appellant.

Court of Appeals of New York.

June 8, 1976.

Allen E. Burns and William E. Hellerstein, New York City, for appellant.

Eugene Gold, Dist. Atty. (J. Mitchell Rosenberg, Brooklyn, of counsel), for respondent.

MEMORANDUM.

The order of the Appellate Division, 48 A.D.2d 933, 370 N.Y.S.2d 23 should be reversed and a new trial ordered.

The defendant was entitled to the charge of manslaughter in the second degree (Penal Law, § 125.15) as a lesser included offense. In People v. Asan, 22 N.Y.2d 526, 532, 293 N.Y.S.2d 326, 239 N.E.2d 913, we held that there is entitlement to a charge for a lesser included offense if upon any view of the facts, the defendant could properly be found guilty of the lesser crime and further, that 'a jury may properly find a lesser included offense from any portion of the defense and prosecution evidence, or from any part of the total proof' (see, also, People v. Mussenden, 308 N.Y. 558, 561--562, 127 N.E.2d 551). Under the circumstances of this case, the jury could reasonably have believed defendant's claim that he was not the initial aggressor but only attempted to repel the victim's attack upon him, and at the same time accept the evidence that defendant, at some point during the struggle with the victim, inflicted fatal wounds on her. Thus, the jury might have found that defendant acted recklessly and therefore committed acts constituting manslaughter in the second degree (Penal Law, § 125.15), but did not act with the intent to cause serious physical injury as required by manslaughter in the first degree (Penal Law, § 125.20; People v. Asan, supra; see, also, People v. Stanfield, 36...