People v. Davis

Appeal by defendant from a judgment of the Supreme Court, Kings County (Starkey, J.), rendered June 24, 1981, convicting him of manslaughter in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

Judgment reversed, on the law, indictment dismissed, and case remitted to the Supreme Court, Kings County, for the purpose of entering an order in its discretion pursuant to CPL 160.50. Findings of fact have not been considered.

The evidence established that the defendant and the decedent, Dorothy Goodson, had lived together for some time and that the defendant considered the decedent’s children as his own. On the day of the incident, the defendant and the decedent, together with the decedent’s children, were in the apartment of their friend, Bruce Brown. Brown testified that while he was in the bedroom, with the" door closed, he heard the defendant and the decedent in the bathroom talking loudly back and forth, “like arguing”; however, he was unable to ascertain what they were talking about. It is undisputed that the defendant and the decedent were alone in the bathroom when a shot was fired which caused the decedent’s death. After the shooting, Brown rushed into the bathroom, where he found a gun lying on the bathroom floor, and the defendant, extremely upset, was holding the decedent in his arms, trying to rouse her. Defendant stated, “Help me, help me”, and “It was an accident”. Later, as Brown and the defendant tried to revive the decedent in the bedroom of the apartment, the defendant further stated, “the gun went off, it was an accident”.

Thereafter, Brown told the defendant that they had to lie about the fact that the decedent was shot in the apartment and state that the decedent had come to the apartment already shot because Brown had recently moved into the apartment and he did not want the incident tied to his home. The defendant agreed to tell Brown’s story, which the defendant, still upset, repeated to the police at the hospital where the decedent had been taken. Subsequently, Brown, who had earlier secreted the gun he had found lying in the bathroom, gave the weapon to the police.

There was no evidence as to who brought the gun into the bathroom, or as to who was holding the gun when it was fired. In *581addition, neither the associate medical examiner’s testimony nor the ballistics evidence ruled out the defense theory that the gun went off accidentally.

Under these circumstances,

“there is nothing which leads inescapably to the conclusion that the defendant was responsible or that his conduct, if negligent, constituted a ‘gross deviation from the standard of conduct that a reasonable person would observe in the situation’ (Penal Law, § 15.05, subds 3, 4) * * *

“[E]ven assuming that the weapon was in the defendant’s hand at the time of the shooting, neither this circumstance nor any other factors in this case compels the inference that the manner in which the defendant handled the weapon, if negligent, rose to the level of a criminal act” (People v Montanez, 41 NY2d 53, 57-58).

Accordingly, reversal of the judgment and dismissal of the indictment is warranted since the evidence is insufficient to sustain the convictions for the crimes charged, or any lesser included offenses (see People v Montanez, supra, p 59).

In light of our determination, we need not and do not reach the other issues raised upon the appeal. Titone, J. P., Bracken and Boyers, JJ., concur.