        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

992
KA 08-00436
PRESENT: SCUDDER, P.J., SMITH, LINDLEY, SCONIERS, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JAMES R. STANFORD, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (KIMBERLY F. DUGUAY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (GEOFFREY KAEUPER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Frank P.
Geraci, Jr., J.), rendered September 26, 2007. The judgment convicted
defendant, upon a jury verdict, of manslaughter in the first degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of manslaughter in the first degree (Penal Law §
125.20 [1]). We reject defendant’s contention that County Court erred
in refusing to charge manslaughter in the second degree (§ 125.15 [1])
as an additional lesser included offense of murder in the second
degree (§ 125.25 [1] [intentional murder]) as charged in the
indictment. It is well settled that, “[t]o establish entitlement to a
lesser included offense charge, the defendant must make two showings.
First, it must be shown that . . . in all circumstances, not only in
those presented in the particular case, it is impossible to commit the
greater crime without concomitantly, by the same conduct, committing
the lesser offense. That established, the defendant must then show
that there is a reasonable view of the evidence in the particular case
that would support a finding that he committed the lesser offense but
not the greater” (People v Glover, 57 NY2d 61, 63). Although we agree
with defendant that manslaughter in the second degree may be a lesser
included offense of intentional murder (see People v Brockett, 74 AD3d
1218, 1219-1220; People v Boyd, 60 AD3d 779, 780, lv denied 12 NY3d
913; see generally People v Sullivan, 68 NY2d 495, 501), we conclude
that there was no reasonable view of the evidence that would permit
the jury to find that defendant committed manslaughter in the second
degree but did not commit manslaughter in the first degree or
intentional murder. The latter two crimes require evidence that
defendant acted intentionally, whereas manslaughter in the second
degree requires evidence that he acted recklessly. Defendant gave
                                 -2-                              992
                                                            KA 08-00436

several statements to the police in which he admitted that he stabbed
the victim so that she would release her grip on him. The evidence
also established that the victim was stabbed four times in the neck
and that one of the wounds was several inches deep and had severed her
major blood vessels. “Thus, by admitting intentional conduct,
defendant negated any theory of recklessness . . . Furthermore, the
number, depth, and placement of the victim’s stab wounds were
completely inconsistent with reckless rather than intentional conduct”
(People v Sussman, 298 AD2d 205, 205, lv denied 99 NY2d 585; cf.
People v Castellano, 41 AD3d 184, 185, affd 11 NY3d 850, rearg denied
12 NY3d 771).

     The court also properly denied defendant’s request for a jury
charge on the justifiable use of deadly physical force to prevent or
terminate a burglary (see Penal Law § 35.20 [3]). Viewing the
evidence in the light most favorable to defendant (see People v
McManus, 67 NY2d 541, 549; People v Watts, 57 NY2d 299, 301), we
conclude that there was no reasonable view of the evidence that would
permit a jury to conclude that defendant reasonably believed that
deadly physical force was necessary to prevent or terminate a burglary
(see People v Petronio, 34 AD3d 602, 603-604, lv denied 8 NY3d 948;
People v McDaniel, 295 AD2d 371, lv denied 98 NY2d 770; cf. People v
Deis, 97 NY2d 717, 719-720; People v Fagan, 24 AD3d 1185, 1186-1187).

     In addition, the court properly denied defendant’s request for a
circumstantial evidence charge. It is well established that, where
the charges against defendant are supported by both circumstantial and
direct evidence, the court is not required to provide the
circumstantial evidence charge (see People v Daddona, 81 NY2d 990,
992). Here, inasmuch as defendant’s statements to the police
“constituted direct evidence of several of the principal facts [at]
issue” (People v Campbell, 69 AD3d 645, 646), the court properly
denied his request for that charge (see People v Alexander, 153 AD2d
507, 509, affd 75 NY2d 979; People v Buskey, 13 AD3d 1058; see
generally People v Rumble, 45 NY2d 879, 880-881).

     Finally, the sentence is not unduly harsh or severe.




Entered:   September 30, 2011                   Patricia L. Morgan
                                                Clerk of the Court
