People v. SchwartzPeople v. Schwartz
Judgment, Supreme Court, Bronx County (Gerald Sheindlin, J.), rendered February 8, 1989, convicting defendant, after trial by jury, of manslaughter in the second degrеe and sentencing him to an indeterminate term of imprisonment of from 4 to 12 years, unanimously reversed, on the law, the facts and as a matter of discretion in the interest of justice, the judgment is vacated and the matter is remitted to the Supreme Court fоr a new trial.
Defendant was indicted for the crimes of murder in the second degree (felony murder and intentional murder), attemрted robbery in the first degree, criminal possession of a weapon in the second degree and criminal use of a firearm in the second degree in connection with the killing of a reputed drug dealer in 1981. Angel Santa testified that he was in the deceased’s apartment on March 4, 1981 when defendant and
Defendаnt and Carlos returned to the apartment later in the day and the deceased agreed to sell defendant some сocaine. After snorting some of the drug, defendant went into the bathroom. When he came out again, Santa heard a suсcession of shots, saw the deceased fall backward and heard defendant say "tell me where the money is.” As Santa аnd defendant began struggling over the gun, defendant told Carlos to shoot him. The wrestling over the gun continued into the hallway, down to the outer door, where defendant fled. A friend of defendant testified that later that evening at a discotheque, defendant told him thаt he had shot the deceased. While the police were questioning another friend of defendant at his home a few dаys later, defendant telephoned, and, while the police were listening on an extension, stated that he had to kill the dеceased because he owed him $2,000. He added that if he "didn’t get him, he would have got me.”
Defendant testified that he had been living in California during the almost eight years since the shooting and that he had stopped using drugs, remarried and started his own executive recruitment firm. After becoming addicted to cocaine in 1980, he began purchasing $50 worth of cocaine a day from the deceased. Even though he already owed the deceased $2,000, he went to the deceased’s apartment on March 4, 1981 with his friend Carlos to try to purchase more on credit. The deceased told him that he had already reached his limit on credit but that if defendant would sell a gun for him, he would give him some cocaine.
Defendant and Carlos left the apartment and stopped at a restaurant where defendant called a friend who agreed to loan him $200. He and Carlos then rеturned to the deceased’s apartment and gave him the money. While the deceased went to the kitchen to get thе drugs for him, defendant asked Santa if he wanted to buy the gun. Santa told him that he already had one so defendant told the decеased that he could not sell the gun for him. Defendant testified that he snorted some of the cocaine and went into the bаthroom where he began wiping his fingerprints off the gun before giving it back to the deceased. As he came out of the bathrоom, Santa lunged at him and grabbed for the gun. Defendant stated that he began pulling the trigger to discharge the bullets from the gun so
The court provided the jury with a charge on attempted robbery in the first degree, felony murder and intentional murder, manslaughter in the first degree (extreme emotional disturbance аnd intent to cause serious physical injury), manslaughter in the second degree and criminally negligent homicide. Despite the рrosecutor’s contention that there was no reasonable view of the evidence to support a chargе on self-defense, the court provided a charge on justification solely as it applied to intentional murder and tо both counts of manslaughter in the first degree. Defense counsel did not object to the charge. The jury thereafter returned with a verdict convicting defendant of manslaughter in the second degree.
We agree with defendant that the court erred in failing to instruct the jury with respect to the defense of justification as it related to the charge of manslaughter in the seсond degree. In viewing the record in the light most favorable to defendant, and based on a reasonable view of the evidence, the jury could have decided that defendant’s actions were justified. (See, People v Padgett,
While the Supreme Court correctly charged the defense of justificatiоn with respect to the intentional crimes, it erred in apparently concluding that such defense was inapplicable to "a defendant’s risk-creating conduct, even though it had unintended consequences (see, People v McManus,
In light of the foregoing, we do not reach defendant’s remaining contentions. Concur—Ross, J. P., Rosenberger, Asch, Kassal and Wallach, JJ. [See,