People v. Blowe , 338 N.Y.S.2d 228 ( 1972 )

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered February 22, 1971, convicting him of manslaughter in the first degree and assault in the second degree, upon a jury verdict, and imposing sentence. Judgment reversed, in the exercise of discretion and the interests of justice, and new trial ordered. Defendant was indicted for the crimes of intentional murder, felony murder, robbery in the first degree, grand larceny in the third degree and assault in the second degree, all arising out of an incident in a Brooklyn park on June 6,1970. The prosecution alleged (-that defendant had attacked and robbed three young men, stabbing one of them to death, after they rebuffed his offer to sell them heroin. Defendant, however, claimed that he had acted in self-defense when attacked by three young men demanding drugs. He was convicted, after a jury trial, of manslaughter in the first degree and assault in the second degree. In our opinion, the conviction must be reversed in the interests of justice and a new trial had for the failure of the trial court to subihit the crimes of manslaughter in the second degree and assault in the third degree to the jury. On the evidence before it, the jury might well have concluded that defendant was reckless in his use of the knife (People v. Asan, 22 N Y 2d 526; People v. Kelly, 12 N Y 2d 248; Code Crim. Pro., § 527 [now CPL 470.15, subd. 6, par. (a)]). Rabin, P. J., Hopkins, Munder and Shapiro, JJ., concur; Martuscello, J., dissents and votes to affirm.