People v. Zipfel

Appeal by the People from an order of the Supreme Court, Kings County, entered December 9, 1974, which granted defendant’s motion to set aside a jury verdict convicting him of manslaughter in the second degree, and dismissed the indictment. Order reversed, on the law, the indictment and jury verdict are reinstated; and the case is remanded to Criminal Term for further proceedings not inconsistent herewith. On a motion to set aside the verdict of a jury, the defendant bears the burden of establishing grounds on which the conviction, if appealed from, would have to be reversed as a matter of law (CPL 330.30, subd 1; 330.40, subd 2, par [g]). On this record it was entirely proper for the trial court to submit the charge of manslaughter in the second degree as a lesser included offense of murder (see CPL 300.40; People v Asan, 22 NY2d 526; People v Blowe, 40 AD2d 982). The other arguments raised by the defendant have been considered and found to be without merit. Martuscello, Acting P. J., Christ, Shapiro, Titone and Hawkins, JJ., concur.