This memorandum is uncorrected and subject to revision before

publication in the New York Reports.

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No. 81 

The People &c.,

 Respondent,

 v.

Glenford C. Hull,

 Appellant.

Jonathan I. Edelstein, for appellant.

John L. Hubbard, for respondent.

MEMORANDUM:

The order of the Appellate Division should be affirmed.

Defendant was convicted in 2006 of one count of murder

in the second degree for fatally shooting his downstairs

neighbor. On appeal, the Appellate Division vacated the judgment

and ordered a new trial on the ground that defendant received

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ineffective assistance of trial counsel (71 AD3d 1336 [2010]). 

At defendant's second trial, the People presented evidence that

defendant and the victim constantly argued and had engaged in a

verbal altercation immediately before the shooting. Defendant

retrieved a loaded handgun from his bedroom, opened the apartment

door and allegedly confronted the victim. The victim rushed at

defendant and reached for the gun. According to defendant's

daughter, who witnessed the incident, the two men were struggling

when the gun discharged. The bullet struck the victim in the

forehead, killing him instantly. Defendant testified in his own

defense that he did not intend to shoot the victim and "wasn't

aiming for nothing" but "wanted to stop his forward momentum." 

At the conclusion of evidence, the People requested

that the court instruct the jury on the lesser included offense

of manslaughter in the first degree, which requires proof that

defendant caused the death of another with "intent to cause

serious physical injury" (Penal Law § 125.20[1]). The court

submitted the charge over defendant's objection, along with

defendant's requested instructions on second-degree manslaughter,

criminally negligent homicide and the defense of justification. 

The jury acquitted defendant of murder but found him guilty of

manslaughter first. Defendant moved to set aside the verdict,

arguing that there was no reasonable view of the evidence that he

intended only to injure, but not kill, the victim when he shot

him in the forehead at point blank range. The trial court denied

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the motion and the Appellate Division affirmed, with one Justice

dissenting. The dissenting Justice subsequently granted

defendant leave to appeal. 

The courts below properly concluded that there was a

reasonable view of the evidence that defendant committed firstdegree manslaughter but not murder in the second degree and,

therefore, the trial court did not err in submitting that charge. 

A court "may, in addition to submitting the greatest offense

which it is required to submit, submit in the alternative any

lesser included offense if there is a reasonable view of the

evidence which would support a finding that the defendant

committed" the lesser but not the greater offense (CPL

300.50[1]). It is undisputed that manslaughter in the first

degree is a lesser included offense of second-degree murder

within the meaning of CPL 1.20(37), so "the question simply is

whether on any reasonable view of the evidence it is possible for

the trier of the facts to acquit the defendant on the higher

count and still find him guilty on the lesser one" (People v

Henderson, 41 NY2d 233, 236 [1976] [emphasis added] [internal

citations omitted]). 

Here, defendant's statements to the victim just before

the shooting, coupled with evidence of the struggle and

defendant's testimony that he "wasn't aiming for nothing" but

"wanted to stop [the victim's] forward momentum" could have led

the jury to conclude that defendant intended only to injure the

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victim and that the victim's movements during the struggle

resulted in his death (see People v Ford, 66 NY2d 428, 441

[1985]). The fact that a bullet entered the victim's forehead

does not necessarily mean defendant intended to kill him, as "it

is a matter of common experience that people who fire handguns do

not always hit precisely the intended target" (People v Butler,

86 AD2d 811, 815 [1st Dept 1982] [Sandler, J. dissenting], revd

for reasons stated in dissenting op 57 NY2d 664, 666 [1982]). 

Defendant's remaining contention regarding the court's

inquiry into possible juror misconduct is unpreserved for our

review (see People v Hicks, 6 NY3d 737, 739 [2005]).

* * * * * * * * * * * * * * * * *

Order affirmed, in a memorandum. Chief Judge DiFiore and Judges

Pigott, Rivera, Abdus-Salaam, Fahey and Garcia concur. Judge

Stein took no part.

Decided June 2, 2016

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