Issue before the Court: Whether, assuming the trial court erred in not charging second-degree manslaughter as a lesser included offense to the indicted counts of second-degree murder and first-degree manslaughter, the error was rendered harmless by the guilty verdict for second-degree murder.

 

Held: Yes, even though the court submitted both second-degree murder and first-degree manslaughter to the jury without telling them to consider those counts in descending order only, thus resulting in the jury’s conviction of both counts.  In this circumstance, the jury’s conviction of the top count, not their conviction on the intervening first-degree manslaughter count, is what controls for harmless-error-analysis purposes.  People v. Boettcher, 69 N.Y.2d 174, 180 (1987).

 

CAL Observes: The interesting issue was the one not raised in this case.  Although, according to the Appellate Division decision, the defendant had been drinking prior to the stabbing of the victim, he did not raise an intoxication defense.  Had he done so, the result would have been different.  While intoxication negates intent, it does not negate a reckless state of mind.  Therefore, in an intentional murder prosecution where the defense of intoxication is raised, the proper lesser included offense is second-degree reckless manslaughter, not intentional first-degree manslaughter.   Thus, conviction on the top murder count, and the jury not reaching the first-degree manslaughter count, would not render the error in not submitting second-degree manslaughter harmless.  People v. Lee, 35 N.Y.2d 826 (1974).  See also, People v. Stovall, 101 A.D.2d 793 (1st Dept. 1984).