THE PEOPLE &C., RESPONDENT, v. JUAN AVILES,
80 N.Y.2d 997, 607 N.E.2d 798, 592 N.Y.S.2d 651 (1992).
November 19, 1992
1 No. 263
This memorandum is uncorrected and subject to revision before publication in the New York Reports.
Kenneth Finkelman, for Appellant.
Richard Sheridan, for Respondent.
The order of the Appellate Division should be reversed and a new trial ordered.
The trial court refused defense counsel's request to instruct the jury in this case concerning lesser-included crimes, particularly manslaughter in the first degree. Defendant was convicted of murder in the second degree and other related crimes, and the Appellate Division affirmed the judgment of conviction. A Justice of the Appellate Division granted leave to appeal to this Court.
The street dispute started at 9:00 p.m. as a verbal exchange between defendant and an individual named Razor, escalated to a chase of Razor and three of his friends by defendant, who was brandishing a knife, and culminated in a multi-person melee on the ground. The homicide victim entered the fray to assist defendant, only to be stabbed twice mortally by defendant.
The lesser-included charge instruction, based on a view of the entire evidence of this street melee, cannot be said as a matter of law to have no reasonable support in the record evidence.
Accordingly, the requested instruction should have been given and there should be a new trial.
* * * * * * * * * * * * * * * * *
Order reversed and a new trial ordered in a memorandum. Acting Chief Judge Simons and Judges Kaye, Titone, Hancock and Bellacosa concur. Judge Smith took no part.