

People v Birt (2015 NY Slip Op 03553)





People v Birt


2015 NY Slip Op 03553


Decided on April 29, 2015


Appellate Division, Second Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on April 29, 2015
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

MARK C. DILLON, J.P.
THOMAS A. DICKERSON
L. PRISCILLA HALL
HECTOR D. LASALLE, JJ.


2013-00955
 (Ind. No. 3387/11)

[*1]The People of the State of New York, respondent,
v Kenneth Birt, appellant.


Lynn W. L. Fahey, New York, N.Y. (Rahshanda Sibley of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Jodi L. Mandel, and Joyce Adolfsen of counsel), for respondent.

DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Dwyer, J.), rendered January 10, 2013, convicting him of manslaughter in the first degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that he was deprived of the effective assistance of counsel is without merit. A reasonable view of the evidence shows that the defendant's conduct in shooting the victim was intentional, not reckless. Thus, trial counsel's choice not to request a charge of the lesser-included offense of manslaughter in the second degree, with its mens rea of recklessness (see Penal Law §§ 125.15[1]; 15.05[3]), did not deprive the defendant of the effective assistance of counsel (see People v Illescas, 87 AD3d 699, 700; People v Tinch, 72 AD3d 992, 993; CPL 300.50[1], [2]).
DILLON, J.P., DICKERSON, HALL and LASALLE, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


