Kenneth Finkelman, for Appellant.
Richard Sheridan, for Respondent.
MEMORANDUM:
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.
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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.