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Court of Appeals of New York.

The PEOPLE & c., Respondent, v. James R. MCINTOSH, Appellant.

No. 58

Decided: June 27, 2019

James A. Hobbs, Rochester, for appellant. Scott Myles, for respondent.


The order of the Appellate Division should be affirmed.

Even assuming the court erred in denying defendant's request to submit the crimes of manslaughter in the second degree and criminally negligent homicide to the jury as lesser included offenses of the charged crimes of murder in the second degree and manslaughter in the first degree, the error was harmless (People v. Johnson, 87 N.Y.2d 357, 361, 639 N.Y.S.2d 776, 662 N.E.2d 1066 [1996];  People v. Boettcher, 69 N.Y.2d 174, 180, 513 N.Y.S.2d 83, 505 N.E.2d 594 [1987];  People v. Brown, 203 N.Y. 44, 50–51, 96 N.E. 367 [1911];  People v. Granger, 187 N.Y. 67, 73, 79 N.E. 833 [1907] ).  The Appellate Division properly concluded that defendant's conviction of the lesser inclusory count of first-degree manslaughter, which it dismissed as required by CPL 300.40(3)(b), did not change the harmless error analysis.  Under the circumstances presented here, the jury's guilty verdict on the indictment's highest count despite the availability of the next lesser included offense for their consideration, “forecloses [defendant's] challenge to the court's refusal to charge the remote lesser included offenses” (Boettcher, 69 N.Y.2d at 180, 513 N.Y.S.2d 83, 505 N.E.2d 594), because it dispels any speculation as to whether the jury might have reached a guilty verdict on “still lower degree[s] of homicide” (Brown, 203 N.Y. at 50, 96 N.E. 367).

Order affirmed, in a memorandum.

Chief Judge DiFiore and Judges Rivera, Stein, Fahey, Garcia, Wilson and Feinman concur.

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