New Trial Ordered on Murder Count
Appellant Luis Cherry was charged with murder in the second degree and other crimes in connection with a shooting in Queens. Appellant told the police both that he had gone to the decedent's home, with a loaded gun, intending to kill him, and that the gun "went off" accidentally during a struggle. Defense counsel asked the court to charge manslaughter in the second degree as a lesser included offense of murder in the second degree, but the court denied the request.
On appeal, the Appellate Division, Second Department, held the the court erred in denying counsel's request to charge the lesser included offense. As the Second Department explained, the court should have granted the request because there was a reasonable view of the evidence that appellant "did not intentionally pull the trigger at the time the gun was fired." Accordingly, the Court reversed appellant's conviction of murder in the second degree and ordered a new trial on that count.
Denise Corsi briefed and argued the appeal.