Primary point to remember: This is a case on appeal in which the court is asked to reverse the decision of the trial court on the following basis:

In the court of original jurisdiction the “defendant was charged with manslaughter in second degree (Penal Law, § 125.15) request that court charge lesser crime of criminally negligent homicide (Penal Law, § 125.10) should have been granted –““jury could find defendant failed to perceive risk inherent in his actions”Thus, main point is whether the trial court erred in not fully considering the lesser penalty.“The sole issue upon this appeal is whether the trial court erred in refusing to submit to the jury the lesser crime of criminally negligent homicide.”Thus, this case is not legally speaking so much about Strong — it’s about the decision of the trial judge.  In a sense it is the trial judge who is now on trial not Strong.

The argument in this case usually follows this course: Respondent (New York):  Strong killed another human being.  He should have been aware of the consequences of his actions.Appellant (Strong):  Strong was not aware of the consequences of his actions as he was absolutely convinced on the basis of his religious beliefs that his actions would not harm the victim.

New York introduces the evidence which tends to undermine the claim that Strong acted in the belief that he would not harm the victim
i.e. the victim’s last words
Strong’s failure to immediately seek medical attention for the victim
etc. (none of which has much actual influence on the outcome of the trial)

DO NOT USE THE COMMON SENSE ARGUMENT,  i.e. “That everybody knows what happens to a person when their heart is pierced by a hatchet”  This argument as absolutely NO BEARING  on the matter at hand, i.e. “What was Strong’s state of mind as he initiated this ‘procedure?”

The prosecution must be keenly aware of the power of the defense’s argument that it would not have caused any harm to society, and, in fact, would have served the cause of justice, if the trial judge had given the jury the option of the lesser charge.  How do you counter that argument?

Basis in law of the claim for the lesser charge:

“Where a reasonable view of the evidence supports a finding that a defendant committed the lesser degree of homicide, but not the greater, the lesser crime should be submitted to the jury”Question:  What is the “reasonable view” of the evidence?  How can the prosecution establish that in light of a “reasonable view of the evidence” the lower court judge should not have given the jury the option of the lesser charge — and do so without falling back on the common-sense argument?

Definition:
“In criminally negligent homicide there is a negligent failure to perceive the risk.”
Clearly Strong is guilty of this lesser crime, but this is not the issue.  It is not even the issue whether he is guilty of the greater charge.  The issue is, should the jury have been given the option.

“The defendant’s conduct and claimed lack of perception, together with the belief of the victim and defendant’s followers, if accepted by the jury, would justify a verdict of guilty of criminally negligent homicide.”
But would it also, not only justify, but demand, to the exclusion of the lesser charge, a verdict of second degree
manslaughter?The respondent (New York) has a very tough job here, for it must prove that a reasonable view of the evidence insists, demands, requires, that the jury exclude even the possibility of the jury voting on the lesser charge.

Thus, this is NOT a question of the guilt or innocence of Strong on either charge, but rather whether justice was served when the lower court refused to allow the jury to consider the lesser charge.

Look at People vs. Stanfield:  Powerful basis of precedent for the appellent!

“The essential distinction between the crimes of manslaughter, second degree, and criminally negligent homicide”, we said in Stanfield, “is the mental state of the defendant at the time the crime was committed. ( People v Haney)In one, the actor perceives the risk, but consciously disregards it.  In the other, he negligently fails to perceive the risk.  The result and the underlying conduct, exclusive of the mental element, are the same.”

Respondent’s Best Case is as follows:  (The Silver Bullet Argument)
This ceremony is inherently dangerous to human life.  If it were NOT dangerous, what would be the point of the ceremony?  What would it prove if snake handlers handled garden snakes rather than rattlers?  Without the indisputable fact that the ceremony poses certain danger to the disciple, a danger perceivable by any conscious person, then why go through with it?.