People v. LeePeople v. Lee
Dissenting Opinion
(dissenting). We find no record justification for the majority’s conclusion that “ the jury would have been entitled to find thаt at the time of the stabbing defendant was too intoxicated to have intended either to kill his victim or to cause her serious physical injury.”
We would sustain the trial court’s refusal to charge manslaughter in the sеcond degree as a lesser included crime, and, accordingly, affirm the order of the Appеllate Division.
In reaching such a determination, we are mindful, of course, that a defendant is entitled tо a charge on a lesser included
The evidence adduced upon the trial overwhelmingly indicates that he was not, in fact, intoxicated when he fatally stabbed his female victim. The People called four witnesses who either saw Lee perpetrate the killing for which he was convicted or observed the defendant immediately thereaftеr as he walked from the scene with a butcher knife in his hand. Not one of these witnesses was of the opinion that Lee was intoxicated. Although one of these witnesses did state that he detected alсohol on the defendant’s breath, this witness testified that he observed nothing unusual or irregular about the manner in which Lee was proceeding. Instead, he described the defendant’s gait as steady, and stated thаt Lee did not stumble or stagger in any way as he walked from the scene of the killing. Three other witnesses produced, the officers who participated in the arrest, testified either that the defendant did nоt stagger or stumble as he walked; that his speech was not slurred or incoherent and that he did not havе to be assisted toward or into the police car.
We deem the defendant’s own testimony to bе not only of consuming interest, but also entirely dispositive of the question, when considered together with аll the other evidence. He testified that he had had only two or three “ little drinks ” in the two and one quartеr hour period immediately preceding the fatal stabbing. He conceded that he had no troublе whatsoever in walking from the scene of the killing. Moreover, when asked by the court on two separate occasions if he was drunk when he stabbed the deceased, he responded that he wаs not drunk at that time or at any other time during the day in question.
In view of these unequivocal stаtements by the defendant himself, we despair at the impact of the majority’s decision since, in our оpinion, it seems to- indicate that any time there is bizarre behavior coupled with a trace оf alcohol on the accused’s breath, the court will be required to instruct the jury that they may considеr a lesser included charge even though, as here, there is no evidence of intoxication or, again as here, the defendant himself unequivocally and firmly testifies he was not intoxicated.
Accоrdingly, the order of the Appellate Division should be affirmed.
Chief Judge Breitel and Judges Jones, Wachtler, Rаbin and Stevens concur; Judge Gabrielli dissents and votes to affirm in a separate opinion in which Judge Jаsen concurs.
Order reversed and a new trial ordered in a memorandum.
Lead Opinion
Memoeandxtm. Our examination of the record of this trial in April, 1971, satisfies us that it was error for the Trial Judge to refuse to charge manslaughter in the second degree (
‘‘ On the duty of the court to charge the lesser degree of [the crime], defendant is entitled to the most favorable view of the record ” (People v. Battle, 22 N Y 2d 323, 324). “ [I]f, upon any view of the facts, a defendant could properly be found guilty of a lesser degree or an included crime, the trial judge must submit such lower offense ” (People v. Mussenden,
Based on some evidence that this defendant was intoxicated, coupled with the absence of any plausible explanation for the concededly bizarre sidewalk stаbbing by this 69-year-old defendant of a victim previously unknown to him and his bewildered, ingenuous behavior following the killing, wе conclude that the jury would have been entitled to find that at the time of the stabbing defendant was too intoxicated to have intended either to kill his victim or to cause her serious physical injury.
No othеr issue tendered by defendant supplies ground for reversal.
The order of the Appellate Division should be reversed, defendant’s conviction vacated and the case remitted to Supreme Court, Kings County, for a new trial.