People v. Horning

Appellate Division of the Supreme Court of New York

People v. Horning

263 A.D.2d 955, 694 N.Y.S.2d 824, 1999 N.Y. App. Div. LEXIS 7915

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 9, 1999

StatusPublished

Cited by7 cases

This text of 263 A.D.2d 955 (People v. Horning) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Horning, 263 A.D.2d 955, 694 N.Y.S.2d 824, 1999 N.Y. App. Div. LEXIS 7915 (N.Y. Ct. App. 1999).

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Opinion

—Judgment unanimously reversed on the law and new trial granted. Memorandum: Defendant contends that the jury verdict convicting him of depraved mind murder in the second degree (Penal Law § 125.25 [2]) and manslaughter in the first degree (Penal Law § 125.20 [1]) is repugnant. The People respond that defendant’s contention is not preserved for our review and, in any event, is without merit. We disagree. Defendant preserved his contention for our review by raising that issue before the jury was discharged (see generally, People v Alfaro, 66 NY2d 985, 987). Furthermore, because defendant “was convicted for acting intentionally and recklessly as to the same result, the death of the victim” (People v Trappier, 87 NY2d 55, 59), the jury verdict is repugnant (see, People v Robinson, 145 AD2d 184, affd 75 NY2d 879; see also, People v Gallagher, 69 NY2d 525). Consequently, the judgment must be reversed and a new trial granted. (Appeal from Judgment of Wayne County Court, Parenti, J. — Murder, 2nd Degree.) Present — Lawton, J. P., Hayes, Wisner, Hurlbutt and Scudder, JJ.

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—Judgment unanimously reversed on the law and new trial granted. Memorandum: Defendant contends that the jury verdict convicting him of depraved mind murder in the second degree (Penal Law § 125.25 [2]) and manslaughter in the first degree (Penal Law § 125.20 [1]) is repugnant. The People respond that defendant’s contention is not preserved for our review and, in any event, is without merit. We disagree. Defendant preserved his contention for our review by raising that issue before the jury was discharged (see generally, People v Alfaro, 66 NY2d 985, 987). Furthermore, because defendant “was convicted for acting intentionally and recklessly as to the same result, the death of the victim” (People v Trappier, 87 NY2d 55, 59), the jury verdict is repugnant (see, People v Robinson, 145 AD2d 184, affd 75 NY2d 879; see also, People v Gallagher, 69 NY2d 525). Consequently, the judgment must be reversed and a new trial granted. (Appeal from Judgment of Wayne County Court, Parenti, J. — Murder, 2nd Degree.) Present — Lawton, J. P., Hayes, Wisner, Hurlbutt and Scudder, JJ.

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Bluebook (online)

263 A.D.2d 955, 694 N.Y.S.2d 824, 1999 N.Y. App. Div. LEXIS 7915, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-horning-nyappdiv-1999.

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