Summary
In Wall, we held that because the "record established that defendant was guilty of an intentional shooting or no other" (29 NY2d at 864), a verdict convicting the defendant of criminally negligent homicide could not be sustained.
Summary of this case from Policano v. HerbertOpinion
Argued November 18, 1971
Decided December 1, 1971
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, CHARLES J. GAUGHAN, J.
Michael F. Dillon, District Attorney ( Peter J. Notaro of counsel), for appellant.
Henrietta M. Wolfgang and Nathaniel A. Barrell for respondent.
Order affirmed in the following memorandum: The order of the Appellate Division should be affirmed. The record established that defendant was guilty of an intentional shooting or no other. The verdict acquitting defendant of the manslaughter counts disposes, as the Appellate Division held, of those counts. Insofar as the submission of the lesser crime of criminally negligent homicide (Penal Law, § 125.10), on no view of the evidence in this record is there warrant for a guilty verdict. This is not to say, as respondent-defendant concedes, that in a proper case criminally negligent homicide might not be a lesser included offense under a manslaughter indictment. It suffices for this case that the two bursts of shots, each shot hitting its victim, could not be found to be the result of negligence merely.
Concur: Chief Judge FULD and Judges BURKE, SCILEPPI, BERGAN, BREITEL, JASEN and GIBSON.