1 No. 103
The People &c.,
Appellant,
v.
Anselmo Helliger,
Respondent.
_________________________________________________________________
2001 NY Int. 90
July 5, 2001
This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Mary C. Farrington, for appellant.
Thomas M. O'Brien, for respondent.
_________________________________________________________________
PER CURIAM:
A Grand Jury indicted defendant for murder in the second degree (Penal
Law § 125.25(3) (depraved indifference murder)) and manslaughter in
the first degree (Penal Law § 125.20(1)) in connection with the
strangulation death of a woman with whom he lived. At trial, the
prosecutor contended that defendant choked the victim to death,
crushing the bones inside her neck, evincing an intent to cause her
serious physical injury and a depraved indifference to her life.
Initially, defendant falsely denied any role in the victim's death,
claiming that he simply came home, found her unconscious and told
others that "the person would be caught soon." When confronted with
the autopsy report, however, he admitted -- and later confirmed at
trial -- that he had choked and killed the victim, adding that her
death was the result of an accident, or simple negligence on his part.
He had been drinking, he testified, and was merely trying to "keep her
quiet."
At a pre-charge conference, the Trial Judge and parties discussed the
counts and lesser-included offenses. The court determined that, in
addition to the two counts in the indictment, it would submit
manslaughter in the second degree (reckless homicide) and criminally
negligent homicide as lesser-included offenses. Neither side objected
to the court's proposal to submit all four charges in the alternative.
The prosecutor, however, pointed out that under these circumstances
the court was obliged to instruct the jury in accordance with the
SNIPPETS:
A Grand Jury indicted defendant for murder in the second degree (Penal Law § 125.25(3) ) and
At trial, the prosecutor contended that defendant choked the victim to death, crushing the
the Trial Judge and parties discussed the counts and lesser-included offenses.
The court determined that, in addition to the two counts in the indictment, it would submit
The prosecutor, however, pointed out that under these circumstances the court was obliged to
The court, however, denied the prosecutor's request to charge in accordance with Boettcher.
The People renewed their request for a Boettcher instruction but the court again refused,
He further told them that if they found defendant guilty of a lesser offense and were in
The People, objecting to a "partial verdict" under these circumstances, once more asked the
At one point the Judge noted that he had "written much of the CPL and the Penal Law for
After the trial court denied the motion, the prosecution commenced an article 78 proceeding
We dismissed the People's appeal from the Appellate Division's dismissal of the article 78
In Boettcher, decided some 14 years ago, this Court took the opportunity to compare the
First, in contrast to CPL 300.50, the Federal Rules do not automatically deem a conviction of
Although the Appellate Division had disapproved of the trial court's disregard of Boettcher,
They further point out, with candor, that they cannot prevail unless we overrule People v
Moreover, under the facts of this case, a conviction of first degree manslaughter would be
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