People v. Birt — 127 A.D.3d 1223

Majority

p. 1223

The People of the State of New York, Respondent, v Kenneth Birt, Appellant.

[5 NYS3d 895]

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Dwyer, J.), rendered January 10, 2013, convicting him of man

p. 1224

slaughter in the first degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s contention that he was deprived of the effective assistance of counsel is without merit. A reasonable view of the evidence shows that the defendant’s conduct in shooting the victim was intentional, not reckless. Thus, trial counsel’s choice not to request a charge of the lesser-included offense of manslaughter in the second degree, with its mens rea of recklessness (see Penal Law §§ 125.15 [1]; 15.05 [3]), did not deprive the defendant of the effective assistance of counsel (see People v Illescas, 87 AD3d 699 , 700 [2011]; People v Tinch, 72 AD3d 992 , 993 [2010]; CPL 300.50 [1], [2]).

Dillon, J.P., Dickerson, Hall and LaSalle, JJ., concur.

Cases cited

People v. Illescas 87 AD3d 699 N.Y. App. Div. 2011-08-23 at 700 p. 1224
People v. Tinch 72 AD3d 992 N.Y. App. Div. 2010-04-20 at 993 p. 1224