-Appeal (1) from a judgment rendered by the County Court, Kings County, sentencing appellant, after he had been found guilty by a jury of manslaughter in the first degree, to serve from 10 to 20 years, and (2) from an order denying a motion to set aside the verdict and for a new trial. Judgment affirmed. No opinion. No separate appeal lies from the intermediate order, which has been reviewed on the appeal from the judgment of conviction. Nolan, P. J., Beldock and Hallinan, JJ., concur; Kleinfeld, J., dissents and votes to reverse the judgment and to order a new trial, with the following memorandum: In my opinion, the trial court committed prejudicial error (a) by failing to instruct the jury that it could find appellant guilty of manslaughter in the second degree under subdivision 3 of section 1052 of the Penal Law, (b) by instructing the jury that there could not be a “ dangerous weapon ” in manslaughter in the second degree, and (e) by instructing the jury that the paring knife used in the homicide was a “ dangerous weapon” as a matter of law (People v. Heineman, 211 N. Y. 475; 1937 Report of N. Y. Law Rev. Comm., pp. 726-730). It is also my opinion that the sentence imposed is excessive, in view of the circumstances of this offense and the fact that appellant had never been previously convicted of a crime (cf. People v. Lewis, 282 App. Div. 267, 273). Murphy, J., deceased.
People v. Drislane
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