Criminal Law · MBE-tested
The People of the State of New York, Respondent, v. Bolivar Gil-Cabrera, Appellant
213 A.D.2d 1065624 N.Y.S.2d 327·New York Supreme Court, Appellate Division·1995·NY
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Opinion
The People of the State of New York, Respondent, v Bolivar Gil-Cabrera, Appellant.
[624 NYS2d 327]
[MAJORITY]
—Judgment unanimously affirmed. Memorandum: Defendant’s challenge to the court’s refusal to charge criminally negligent homicide (Penal Law § 125.10) as a lesser included offense of murder in the second degree (Penal Law § 125.25 [1]) is foreclosed by the jury’s verdict finding defendant guilty of murder in the second degree as charged in the indictment and the jury’s implicit rejection of the charged lesser included offense of manslaughter in the first degree (see, People v Scott, 203 AD2d 911, lv denied 83 NY2d 971). In any event, defendant was not entitled to the charge because under no reasonable view of the evidence could the jury have found that defendant committed the lesser offense but not the greater (see, People v Thomches, 172 AD2d 786, 787). (Appeal from Judgment of Monroe County Court, Connell, J.—Murder, 2nd Degree.) Present—Green, J. P., Pine, Fallon, Callahan and Davis, JJ.