
    The People of the State of New York, Respondent, v Robert Strong, Also Known as Omar Ali Shereiff, Appellant.
    Argued September 18, 1975;
    decided October 23, 1975
    
      
      Peter L. Yellin, Public Defender (Robert S. Beer of counsel), for appellant.
    The trial court erred in declining to charge the jury on the crime of criminally negligent homicide. (People v Richardson, 36 AD2d 25; People v Schleiman, 197 NY 383; People v Mussenden, 308 NY 558; People v Asan, 22 NY2d 526; People v Malave, 21 NY2d 26; People v Wall, 29 NY2d 863; People v Usher, 39 AD2d 459.)
    
      Jack B. Lazarus, District Attorney (Melvin Bressler of counsel), for respondent.
    I. The trial court correctly refused to charge a lesser crime because there was no evidence supporting guilt of the lesser crime. (People v Asan, 22 NY2d 526; People v Battle, 22 NY2d 323.) II. The right to a lesser charge should not be extended to cases where there is no basis in fact for the lower charge. (People v Miller, 143 App Div 251; People v Murch, 263 NY 285; People v Rytel, 284 NY 242; People v Mussenden, 308 NY 558.)
   Jasen, J.

Defendant was charged, in a one-count indictment, with manslaughter in the second degree (Penal Law, § 125.15) for causing the death of Kenneth Goings. At the trial, the defense requested that the court submit to the jury, in addition to the crime charged, the crime of criminally negligent homicide (Penal Law, § 125.10). The court refused, and the jury found defendant guilty as charged.

The sole issue upon this appeal is whether the trial pourt erred in refusing to submit to the jury the lesser crime of criminally negligent homicide.

Recently, in People v Stanfield (36 NY2d 467), the same issue was before us and we held that where a reasonable view of the evidence supports a finding that a defendant committed this lesser degree of homicide, but not the greater, the lesser crime should be submitted to the jury. This view conforms with the requirements of CPL 300.50 (subd 1), which provides in pertinent part that "the court in its discretion 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 such lesser offense but did not commit the greater. If there is no reasonable view of the evidence which would support such a finding, the court may not submit such lesser offense.”

"The essential distinction between the crimes of manslaughter, second degree, and criminally négligent homicide”, we said in Stanfield (p 470), "is the mental state of the defendant at the time the crime was committed. (People v Haney, 30 NY2d 328, 333.) In one, the actor perceives the risk, but consciously disregards it. (Penal Law, § 15.05, subd 3.) In the other, he negligently fails to perceive the risk. (Penal Law, § 15.05, subd 4.) The result and the underlying conduct, exclusive of the mental element, are the same.” Although in Stanfield (p 471) we pointed out that "criminal recklessness and criminal negligence * * * may * * * be but shades apart on the scale of criminal culpability”, it would be incorrect to infer from Stanfield that in every case in which manslaughter, second degree, is charged, a defendant is entitled also to an instruction as to criminally negligent homicide.

In determining whether the defendant in this case was entitled to the charge of the lesser crime, the focus must be on the evidence in the record relating to the mental state of the defendant at the time of the crime. The record discloses that the defendant, 57 years old at the time of trial, had left his native Arabia at the age of 19, emigrating first to China and then coming to the United States three years later. He had lived in Rochester only a short time before committing the acts which formed the basis for this homicide charge. He testified that he had been of the Sudan Muslim religious faith since birth, and had become one of the sect’s leaders, claiming a sizable following. Defendant articulated the three central beliefs of this religion as "cosmetic consciousness, mind over matter and psysiomatic psychomatic consciousness.” He stated that the second of these beliefs, "mind over matter”, empowered a "master”, or leader, to lie on a bed of nails without bleeding, to walk through fire or on hot coals, to perform surgical operations without anesthesia, to raise people up off the ground, and to suspend a person’s heartbeat, pulse, and breathing while that person remained conscious. In one particular type of ceremony, defendant, purportedly exercising his powers of "mind over matter”, claimed he could stop a follower’s heartbeat and breathing and plunge knives into his chest without any injury to the person. There was testimony from at least one of defendant’s followers that he had successfully performed this ceremony on previous occasions. Defendant himself claimed to have performed this ceremony countless times over the previous 40 years without once causing an injury. Unfortunately, on January 28, 1972, when defendant performed this ceremony on Kenneth Goings, a recent recruit, the wounds from the hatchet and three knives which defendant had inserted into him proved fatal.

We view the record as warranting the submission of the lesser charge of criminally negligent homicide since there is a reasonable basis upon which the jury could have found that the defendant failed to perceive the risk inherent in his actions. (People v Asan, 22 NY2d 526.) The defendant’s conduct and claimed lack of perception, together with the belief of the victim and defendant’s followers, if accepted by the jury, would justify a verdict of guilty of criminally negligent homicide. There was testimony, both from defendant and from one of his followers, that the victim himself perceived no danger, but in fact volunteered to participate. Additionally, at least one of the defendant’s followers testified that the defendant had previously performed this ritual without causing injury. Assuming that a jury would not believe that the defendant was capable of performing the acts in question without harm to the victim, it still could determine that this belief held by the defendant and his followers was indeed sincere and that defendant did not in fact perceive any risk of harm to the victim.

That is not to say that the court should in every case where there is some subjective evidence of lack of perception of danger submit the lesser crime of criminally negligent homicide. Rather, the court should look to other objective indications of a defendant’s state of mind to corroborate, in a sense, the defendant’s own subjective articulation. Thus, in Stanfield, there was evidence from which the jury could have reasonably concluded that the victim herself did not view Stanfield’s actions as creating any risk of harm. (36 NY2d, at p 472.) Here, the evidence supporting defendant’s claimed state of mind is, if anything, stronger.

Therefore, on the particular facts of this case, we conclude that there is a reasonable view of the evidence which, if believed by the jury, would support a finding that the defendant was guilty only of the crime of criminally negligent homicide, and that the trial court erred in not submitting, as requested, this lesser offense to the jury.

Accordingly, we would reverse and order a new trial.

Gabrielli, J.

(dissenting). I dissent and conclude that there is no justification in the record for the majority’s holding that "defendant’s conduct or claimed lack of perception, together with the belief of the victim and defendant’s followers, if accepted by the jury, would justify a verdict of criminally negligent homicide”. The Appellate Division was correct in holding that "Defendant’s belief in his superhuman powers, whether real or simulated, did not result in his failure to perceive the risk but, rather, led him consciously to disregard the risk of which he was aware”.

At trial, it was shown, primarily from defendant’s own statements to the police and testimony before the Grand Jury, that during the course of a "religious ordeal”, defendant, the self-proclaimed leader of the Sudan Muslim sect of Rochester, New York, stabbed one of his followers, Kenneth Goings, a number of times in the heart and chest causing his death.

Additionally, the evidence established defendant’s awareness and conscious disregard of the risk his ceremony created and is entirely inconsistent with a negligent failure to perceive that risk. Testimony was adduced that just prior to being stabbed, Goings, a voluntary participant up to that point, objected to continuance of the ceremony saying "No, father” and that defendant, obviously evincing an awareness of the possible result of his actions, answered, "It will be all right, son”. Defendant testified that after the ceremony, he noticed blood seeping from the victim’s wounds and that he attempted to stop the flow by bandaging the mortally wounded Goings. Defendant further stated that when he later learned that Goings had been removed to another location and had been given something to ease the pain, he became "uptight”, indicating, of course, that defendant appreciated the risks involved and the possible consequences of his acts.

Examination of the two homicide sections of the Penal Law, here involved, is important.

"A person is guilty of manslaughter in the second degree when: 1. He recklessly causes the death of another person” (Penal Law, § 125.15, subd 1); and subdivision 3 of section 15.05 provides that a person acts "recklessly” with respect to a result when he is aware of and disregards a substantial and unjustifiable risk that such result will occur.

"A person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person” (Penal Law, § 125.10); and a person acts with "criminal negligence” with respect to a result when he fails to perceive a substantial and unjustifiable risk that such result will occur (Penal Law, § 15.05, subd 4).

Simply stated, a reckless offender (manslaughter) is aware of the risk and consciously disregards it; whereas, on the other hand, the "criminally negligent” offender is not aware of the risk created and cannot thus be guilty of disregarding it.

Can it be reasonably claimed or argued that, when the defendant inflicted the several stab wounds, one of which penetrated the victim’s heart and was four and three-quarter inches deep, the defendant failed to perceive the risk? The only and obvious answer is simply "no”.

Moreover, the record is devoid of evidence pointing toward a negligent lack of perception on defendant’s part. The majority concludes otherwise by apparently crediting the testimony of defendant, and one of his followers, that at the time defendant was plunging knives into the victim, the defendant thought "there was no danger to it”. However, it is readily apparent that the quoted statement does not mean, as the majority assert, that defendant saw no risk of harm in the ceremony, but, rather, that he thought his powers so extraordinary that resultant injury was impossible. Thus, the testimony does not establish defendant’s negligent perception for even a grossly negligent individual would perceive the patent risk of injury that would result from plunging a knife into a human being; instead, the testimony demonstrates defendant’s conscious disregard of the possible consequences that would naturally flow from his acts.

This case might profitably be analogized to one where an individual believing himself to be possessed of extraordinary skill as an archer attempts to duplicate William Tell’s feat and split an apple on the head of another individual from some distance. However, assume that rather than hitting the apple, the archer kills the victim. Certainly, his obtuse subjective belief in his extraordinary skill would not render his actions criminally negligent. Both, in the context of ordinary understanding and the Penal Law definition (§ 15.05, subd 3), the archer was unquestionably reckless and would, therefore, be guilty of manslaughter in the second degree. The present case is indistinguishable.

Finally, while the majority proclaim that the lesser offense need not be charged in every manslaughter case, I am disturbed by their conclusion that the evidence here is stronger than that in People v Stanfield (36 NY2d 467). In Stanfield, as the majority recognize, the victim did not view Stanfield’s actions as creating a risk of harm. However, as noted earlier, just prior to being stabbed, the victim here unequivocally objected. Therefore, viewing the objective indications of defendant’s state of mind to corroborate defendant’s own subjective articulation, as the majority would have us do, it can only be concluded that the victim made defendant aware of the risk and defendant consciously disregarded it. Hence, a lesser charge was not warranted by the evidence.

Courts should not invite juries to reach unwarranted or compromised verdicts by inappropriately submitting lesser charges to them. Such charges are "justified only where there is some basis in the evidence for finding the accused innocent of the higher crime, and yet guilty of the lower one” (People v Mussenden, 308 NY 558, 563, and the cases cited therein; People v Stanfield, 36 NY2d 467, supra). There being no proper evidentiary basis for the lesser charge here, the order of the Appellate Division should be affirmed.

Chief Judge Breitel and Judges Jones, Wachtler, Fuchs-berg and Cooke concur with Judge Jasen; Judge Gabrielli dissents and votes to affirm in a separate opinion.

Order reversed, etc. 
      
       If the court is authorized to submit a lesser included offense and either party requests that it do so, it most submit the lesser offense. (CPL 300.50, subd 2.)
     