Appellate Division of the Supreme Court of New York, 2011

People v. Irizarry

People v. Irizarry
Appellate Division of the Supreme Court of New York · Decided October 25, 2011
88 A.D.3d 1013; 931 N.Y.2d 882
People v. Irizarry

Opinion of the Court

*1014Where, as here, “a court charges the next lesser included offense of the crime alleged in the indictment, but refuses to charge lesser degrees than that . . . the defendant’s conviction of the crime alleged in the indictment forecloses a challenge to the court’s refusal to charge the remote lesser included offenses” (People v Boettcher, 69 NY2d 174, 180 [1987]; see People v Green, 5 NY3d 538, 545 [2005]; People v Alston, 77 AD3d 762, 762 [2010]). “Thus, review of the defendant’s challenge to the [Supreme] Court’s refusal to charge manslaughter in the second degree as a lesser-included offense of murder in the second degree is foreclosed by the jury verdict finding him guilty of murder in the second degree, the crime alleged in the indictment, and its implicit rejection of the lesser-included offense of manslaughter in the first degree” (People v Gorham, 72 AD3d 1108, 1109 [2010]; see People v Johnson, 87 NY2d 357, 361 [1996]; People v Alston, 77 AD3d at 762). Mastro, J.E, Eng, Belen and Hall, JJ., concur.

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