People v. Horning

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

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.