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PEOPLE v. MILLS

302 A.D.2d 141 (2002)

750 N.Y.S.2d 230

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ARTHUR MILLS, Appellant.

Appellate Division of the Supreme Court of the State of New York, Fourth Department.

November 15, 2002.

Attorney(s) appearing for the Case

Frank J. Nebush, Jr., Public Defender, Utica (Esther Cohen Lee of counsel), for appellant.

Michael A. Arcuri, District Attorney, Utica (Carl J. Boykin of counsel), for respondent.

WISNER and BURNS, JJ., concur with GORSKI, J.; SCUDDER, J., and PIGOTT, JR., P.J., dissent and vote to reverse in a separate opinion by SCUDDER, J.

OPINION OF THE COURT

GORSKI, J.

The principal issue on this appeal is whether defendant waived the statute of limitations applicable to criminally negligent homicide (Penal Law § 125.10) by requesting that County Court charge that crime as a lesser included offense of murder in the second degree (§ 125.25 [2] [depraved indifference murder]), for which there is no statute of limitations. We conclude that, by requesting that the lesser included offense...

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