People v. Lee 67 A.D.2d 660

— Judgment, Supreme Court, New York County, rendered November 17, 1976, convicting defendant of manslaughter in the first degree and sentencing him thereupon to a term of imprisonment of 12 Vi to 25 years, unanimously reversed, on the law, and the matter remanded for a new trial. There were no eyewitnesses to this homicide, which took place in a storeroom of a restaurant, although there were witnesses who saw defendant enter the room before the report of the fatal gunshots and leave immediately thereafter. Defendant testified that he entered the room pursuant to a prearranged meeting with Jong, the victim, to recover money stolen from him in a robbery, that Jong was lying face down on a couch at the far end of the room, that defendant noticed Jong’s hand on a pistol lying on a nearby table, that Jong arose and threatened defendant, that a struggle ensued, and that Jong was shot three times. Defendant asked for, and received, a charge on justification. At the same time the court refused his request to charge the lesser counts of manslaughter in the second degree and criminally negligent homicide, and submitted to the jury only murder in the second degree, as charged, and manslaughter in the first degree, as a lesser included offense. Under the circumstances, it was error to refuse so to charge, as the jury might have credited defendant’s version that Jong was the initial agressor and yet found that defendant acted recklessly or negligently in causing the death of Jong. (See People v Tai, 39 NY2d 894; People v Garcia, 64 AD2d 555.) Concur — Birns, J. P., Evans, Fein, Sullivan and Lupiano, JJ.