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80 N.Y.2d 997

People v. Aviles

New York Court of Appeals

Decided November 19, 1992

New York Court of Appeals · decided 1992-11-19

Cited by 1 later decisions — most recently December 1994

1 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1992-11-19

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¶1OPINION OF THE COURT

¶2Memorandum.

¶3The order of the Appellate Division should be reversed and a new trial ordered.

¶4The 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 *998conviction. A Justice of the Appellate Division granted leave to appeal to this Court.

¶5The 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 multiperson melee on the ground. The homicide victim entered the fray to assist defendant, only to be stabbed twice mortally by defendant.

¶6The 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.

¶7Acting Chief Judge Simons and Judges Kaye, Titone, Hancock, Jr., and Bellacosa concur in memorandum; Judge Smith taking no part.

¶8Order reversed, etc.

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