The People of the State of New York, Respondent, v. Florentino Menendez Martinez, Appellant

The People of the State of New York, Respondent, v Florentino Menendez Martinez, Appellant. [MAJORITY] Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered December 22,1972, convicting him of manslaughter in the second degree, upon a jury verdict, and imposing sentence. Judgment reversed, on the law, and new trial ordered. Defendant was charged with murder. Despite his attorney’s timely request for a charge to the jury on the elements of criminally negligent homicide, the jury was instructed to consider only the crimes of murder and manslaughter in the second degree. Upon the facts of this case, a jury could find defendant guilty of criminally negligent homicide and acquit him of any higher degree of homicide. Accordingly, it was error for the trial court to refuse defense counsel’s request (CPL 300.50, subds. 1, 2; People v Usher, 39 AD2d 459, affd 34 NY2d 600). Hopkins, Acting P. J., Latham, Cohalan, Brennan and Munder, JJ., concur.