People v. Harris 69 A.D.2d 843

Appeal by defendant from a judgment of the Supreme Court, Westchester County, rendered July 28,1977, convicting him of manslaughter in the second degree, upon a jury verdict, and imposing sentence. Judgment modified, as a matter of discretion in the interest of justice, by reducing the sentence to the time already served. As so modified, judgment affirmed. On November 26, 1976 defendant concededly shot and killed Mitchell Best. The defense to the charges arising from that act was that the defendant acted unintentionally and, in any event, with legal justification since he was interrupting a burglary. On appeal defendant contends that he is entitled to a new trial on the ground that the Trial Judge failed to marshal the evidence (see CPL 300.10, subd 2). While we agree that the evidence was not adequately marshalled, we fail to find that the error requires reversal. Although many witnesses testified, the case was, essentially, a simple one (cf. People v Rivera, 60 AD2d 852). Moreover, defendant failed to raise the issue at the trial. We also note that the charge, taken in its entirety, is unquestionably fair to the defendant. Accordingly, a new trial is not warranted. As to the sentence, in view of the 20 months defendant has already served and the extenuating circumstances present here, we reduce it to the time already served. Mollen, P. J., Suozzi, O’Connor and Mangano, JJ., concur.