Opinion
April 22, 1968
Judgment of the Supreme Court, Kings County, rendered June 20, 1966, affirmed. Defendant was indicted for one count of manslaughter in the first degree and two counts of assault in the second degree, all of which arose out of the same act. Although it clearly appeared that the victim died of the wound inflicted, the trial court, without objection or exception, submitted all the counts to the jury, which acquitted defendant of the manslaughter charge but found her guilty of the assault charges. Since it is conceded that "the act complained of" was "proven to be the cause of death", defendant was entitled to have the assault charges withheld from the jury (Code Crim. Pro., § 444; People v. Mussenden, 308 N.Y. 558; People v. De Garmo, 73 App. Div. 46, revd. other grounds 179 N.Y. 130; People v. McKnight, 26 A.D.2d 963; People v. Schiavi, 96 App. Div. 479). However, defendant neither objected nor excepted to their submission. Why does not appear. While this court has the power, regardless of the absence of objections or exceptions, to reverse a conviction in the interests of justice ( People v. De Renzzio, 19 N.Y.2d 45, 52; People v. Kelly, 12 N.Y.2d 248), on the whole record it is our opinion that the interests of justice would not be served by the exercise of such power in this case. Beldock, P.J., Christ, Brennan, Benjamin and Munder, JJ., concur.