People v. Colon

209 A.D.2d 428, 619 N.Y.S.2d 604

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Pincus, J.), rendered March 10, 1992, convicting him of murder in the second degree (felony murder) and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The issue of whether the court should have charged manslaughter in the first degree as a lesser included offense of intentional murder is academic in this case. This is so because the court informed the jury not to reach the intentional murder charge under count two if it found the defendant guilty of felony murder under count one. The defendant was convicted of felony murder, and, pursuant to the court’s instructions, the jury never considered the charge of intentional murder. Thus, the court’s failure to charge manslaughter in the first degree could not have affected the verdict.

The defendant’s sentence is not excessive (see, People v Suitte, 90 AD2d 80).

The defendant’s remaining contention lacks merit. Bracken, J. P., Santucci, Krausman and Goldstein, JJ., concur.