People v. Ramirez , 76 A.D.2d 115 ( 1980 )

OPINION OF THE COURT

Bloom, J.

On November 11, 1976, Estaban Casilla (Smokey) and defendant met in a social club where they began arguing "over a woman”. The argument became heated and Smokey turned away from defendant, removed his jacket and passed it to Del Valle, one of his friends, seemingly in preparation for a fight. While he was so turned, defendant pulled out a knife and stabbed him in the chest area, mortally wounding him. Del Valle, who had turned to put down Smokey’s jacket, did not see the actual stabbing. However, when he turned back he saw the knife in defendant’s hand. Others also identified defendant as the man who stabbed Smokey.

Smokey was rushed to Lincoln Hospital, where he died. Two foot patrolmen heard screams and hastened to the scene of the stabbing. Defendant was arrested and, in a melee which followed involving a crowd of some 25 bystanders, suffered an injury to his arm. The police took him to a hospital, where he was treated and released. He was then taken to the 42nd Precinct.

At the station house he was questioned and made a statement to Detective Danaher. His version of the evening’s events was that he had been set upon by a group of youths armed with sticks and bats, one of whom said to him "you want the same thing I gave you last time”. He further asserted that on a prior occasion he had been robbed and beaten by one of the group.

As defendant’s statement approached its conclusion, he was informed that Smokey had died. He responded by saying "Good, that’s what I meant to do”. Subsequently the same evening, defendant repeated the statement to an Assistant District Attorney adding only that Smokey was the one who had previously robbed him.

Defendant, who took the witness stand at the trial, told the same story embellishing it to the extent only that when he was approached by the five youths Smokey, who was among them, was carrying a crowbar. He asserted that Smokey swung the crowbar at him which he avoided by ducking. Thereupon he pulled out a knife and stabbed the deceased. The defendant, who was indicted for murder in the second degree, was found guilty of manslaughter in the first degree. We affirm.

Although defendant denigrates the character of the witnesses produced by the People, he makes no issue over whether the evidence was sufficient to establish his guilt beyond a reasonable doubt. He does, however, join issue on the failure of the trial court to charge manslaughter in the second degree as a lesser included count, and on the charge on intent.

There is some question as to whether the failure of the trial court to charge manslaughter in the second degree was preserved for review by us. On the day preceding the charge by the court, defense counsel requested that the crime be charged. The court, while expressing grave doubt as to the propriety of such a charge down requested that the charge be submitted in writing. The following morning the written request was submitted. Although no objection was made to the court’s statement that it did not intend to charge manslaughter in the second degree, that ruling "was a refusal or failure to act as requested by the appellant” within the meaning of CPLR 5501 (subd [a], par 3), and, hence, we think, preserved the issue for review (cf. People v Cona, 49 NY2d 26; People v Darrisaw, 49 NY2d 786).

CPL 300.50 (subd 1) empowers the court to submit, in addition to the greatest offense which it is required to submit, "any lesser included offense if there is a reasonable view of the evidence which would support a finding that the defendant committed such lesser offense but did not commit the greater”. Subdivision 2 of that section requires the court to submit such included count if it is so authorized to do "and is requested by either party to do so”. However, "submission of a lesser degree or an included crime is justified only where there is some basis in the evidence for finding the accused innocent of the higher crime, and yet guilty of the lower one * * * The trial court may not, however, permit the jury to choose between the crime charged and some lesser offense where the evidence essential to support a verdict of guilt of the latter necessarily proves guilt of the greater crime as well” (People v Mussenden, 308 NY 558, 563).

The essential distinction between manslaughter in the first degree and manslaughter in the second degree is that the former consists of an intentional act to inflict serious physical injury which causes death (Penal Law, § 125.20, subd 1) while the latter is bottomed upon a reckless act which causes death (Penal Law, § 125.15, subd 1). The entire thrust of the defense interposed by defendant makes it evident that his acts were intentional and not reckless, as those terms are defined in section 15.05 of the Penal Law. This was emphasized by defendant’s statement when told of Smokey’s death. Giving the best interpretation to defendant’s testimony it is plain that the wielding of the knife was an intentional act. Hence, to have charged manslaughter in the second degree would have authorized the jury to engage in wholly arbitrary, even irrational selection from the proof (People v Scarborough, 49 NY2d 364).

Defendant also contends that the charge on intent transferred to defendant the burden of persuasion and was, therefore, violative of his due process rights (Sandstrom v Montana, 442 US 510). While it is true that the court used the words found objectionable in Sandstrom, Mr. Justice Brennan’s opinion makes clear that under the Montana Code Annotated the presumption is conclusive, unless "overcome by a preponderance of evidence contrary to the presumption. Unless the presumption is overcome, the trier of fact must ñnd the assumed fact in accordance with the presumption ” (Sandstrom v Montana, supra, p 518, n 6; italics in original). Thus, as in Mullaney v Wilbur (421 US 684), the defendant was required to come forward with proof to negate an element of the prosecution’s case. This transference of the burden of persuasion to defendant was held to be violative of defendant’s constitutional rights.

Here, the charge expressly negated that transfer of the burden of proof. Here the court instructed the jury that "[t]he existence of criminal intent constitutes a question of fact for the determination by you. The burden of showing intent, the intent with which a crime has been committed, rests upon the Prosecution to establish by evidence beyond a reasonable doubt * * * Intent, and I mean criminal intent, is always an essential element to the commission of a crime such as we have here. It may be proved by direct evidence or it may be proved from circumstances surrounding the transaction or act itself, or it may be proved by a combination of both.” (Italics supplied.)

That the use of the "objectionable” sentence is no magic talisman leading, in the ultimate, to automatic reversal, is evidenced by the very recent decisions of our Court of Appeals in People v Marr and People v Getch (50 NY2d 456) and People v Thomas (50 NY2d 467). In Getch (supra), as in this case, the charge that a person is presumed to intend the natural and normal consequences of his acts was submitted in a manner which stressed the obligation of the prosecution to establish intent beyond a reasonable doubt. Thus there was no inversion of the burden of persuasion. The conviction was, therefore, sustained. In Marr (supra) the charge was submitted in mandatory form. Accordingly, the burden of persuasion was held to have been transferred from the prosecution to the defendant with the result that the conviction was reversed.

Emphasis is laid to this distinction by comparison of Ulster County Ct. v Allen (442 US 140), with Sandstrom (supra). Allen (supra) involved the statutory presumption that the presence of a firearm in an automobile is presumptive evidence of its illegal possession by all occupants of the vehicle. There the Supreme Court held that "[b]ecause this permissive presumption leaves the trier of fact free to credit or reject the inference and does not shift the burden of proof, it affects the application of the 'beyond a reasonable doubt’ standard only if, under the facts of the case, there is no rational way the trier could make the connection permitted by the inference” (Ulster County Ct. v Allen, supra, p 157). Because it found (p 163) the presumption "entirely rational”, it concluded that it constituted no infringement of the defendants rights and sustained its constitutional validity.

Here, as in Allen (supra) we find the presumption entirely rational. Because the trial court carefully charged the jury that the question of criminal intent was one to be decided by them and that the prosecution had the burden of proving it beyond a reasonable doubt we are impelled to conclude that no right of the defendant was violated.

The final issue raised is that of sentence. We find it to be without merit.

Accordingly, the judgment of the Supreme Court, Bronx County (Warner, J.), rendered May 4, 1978, convicting defendant of the crime of manslaughter in the first degree, and sentencing him to a term of imprisonment, should be affirmed.