Defendant appeals from a judgment of the Supreme Court, New York County (Carol Berkman, J.), rendered November, 17, 2006, convicting him, after a jury trial, of manslaughter in the second degree and imposing sentence.
The opinion of the court was delivered by: McGUIRE, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Luis A. Gonzalez, P.J., Peter Tom, David B. Saxe, David Friedman, James M. McGuire, JJ.
In reversing the defendant's conviction in Morissette v United States (342 US 246 ), Justice Jackson stated for a unanimous Supreme Court that "[t]his would have remained a profoundly insignificant case to all except its immediate parties had it not been so tried and submitted to the jury as to raise questions both fundamental and far-reaching in federal criminal law" (id. at 247). We conclude thatessentially the same fundamental error was made in this case when defendant's request that criminally negligent homicide be submitted to the jury was denied.
The uncontroverted evidence at trial established that the victim, Luis Gomez, died as a result of a single stab wound to the left side of his chest that was some three to four inches deep and penetrated his aorta by three-eighths of an inch. The undisputed proof also established that defendant caused that wound while wielding a large knife, one with a 101/2-inch serrated blade, that he obtained from the kitchen in his apartment after an earlier altercation with Gomez during which Gomez punched him in the nose. Defendant was charged in a single-count indictment with second-degree manslaughter (Penal Law § 125.15) for recklessly causing Gomez' death. Thus, the People contended that in wielding the knife and inflicting the fatal wound, defendant was "aware of and consciously disregard[ed] a substantial and unjustifiable risk that [death would] occur" (Penal Law § 15.05). After a jury trial, defendant was convicted of that crime. On appeal, he contends that the trial court erred in denying his request for the submission of a charge of criminally negligent homicide (Penal Law § 125.10) as a lesser included offense of the second-degree manslaughter charge. In relevant part, the elements of the two offenses differ solely with respect to the requisite mens rea, with criminally negligent homicide requiring proof that in wielding the knife and inflicting the fatal wound, defendant "fail[ed] to perceive a substantial and unjustifiable risk that [death would] occur" (Penal Law § 15.05).*fn1
The propriety of the denial of a request for the submission of a lesser included offense turns on "whether, under any reasonable view of the evidence, it is possible for the trier of facts to acquit defendant on the higher count and still find him guilty of the lesser one" (People v Van Norstrand, 85 NY2d 131, 136 ). "In determining whether such a reasonable view exists, the evidence must be viewed in the light most favorable to defendant" (People v Martin, 59 NY2d 704, 705 ). Accordingly, "it is well settled that a refusal to charge a lesser included crime is warranted only where every possible hypothesis but guilt of the higher crime [is] excluded" (People v Johnson, 45 NY2d 546, 549  [internal quotation marks omitted; brackets in original]). Moreover, "the jury's freedom to accept or reject part or all of the defense or prosecution's evidence" is "[e]qually well established" (id. [internal quotation marks omitted]).
Because the sole relevant difference between the crimes of reckless manslaughter and criminally negligent homicide is the mens rea of the actor, another settled principle of law is highly relevant to the resolution of this appeal. In People v Flack (125 NY 324 ), Judge Andrews addressed the respective roles of the jury and the judge on the issue of criminal intent. Sixty years later, in Morissette, Justice Jackson quoted Judge Andrews' "well stated" (342 US at 274) words at length. Judge Andrews wrote:
"However clear the proof may be, or however incontrovertable [sic] may seem to the judge to be the inference of a criminal intention, the question of intent can never be ruled as a question of law, but must always be submitted to the jury. Jurors may be perverse; the ends of justice may be defeated by unrighteous verdicts, but so long as the functions of the judge and jury are distinct, the one responding to the law, the other to the facts, neither can invade the province of the other without destroying the significance of trial by court and jury" (People v Flack, 125 NY at 334).
What is true of the specific mens rea of criminal intent is true of mens rea generally: it is quintessentially a question for the jury.
Judge Andrews' statement of the law is not inconsistent with the settled principle that a lesser included offense may be submitted only when there is a reasonable view of the evidence that the defendant committed the lesser but not the greater crime. When the only relevant difference between the greater and lesser crime is the required mens rea, "the question of intent," or mens rea generally, can be ruled as a question of law and need not be submitted to the jury when there is no such reasonable view. Judge Andrews' statement of the law is not to the contrary, as in the two sentences immediately preceding those quoted above he spoke of the "general rule of law" and acknowledged the existence of "exceptional cases" (125 NY at 334). The crux of the position staked out for the Court by Judge Andrews is that, given the distinct role and competence of the jury on the factual question of mens rea, judges must be particularly chary about invading the province of the jury by ruling on mens rea as a matter of law. As discussed below, this principle of deference to the jury on questions of mens rea is not an anachronism.
Mens rea is the particular province of the jury because it is elusive as well as subjective, and all but invariably is determined by drawing from objective facts - which may be inconsistent, fraught with ambiguity or both - inferences about a subjective matter that are informed by human experience. As Chief Judge Cardozo stated for a unanimous Court of Appeals in reversing a conviction for murder in the first degree because of the trial court's refusal to submit lesser homicide charges:
"Whenever intent becomes material, its quality or persistence - the deranging influence of fear or sudden impulse or feebleness of mind or will - is matter for the jury if such emotions or disabilities can conceivably have affected the thought or ...