People v. Johnson

209 A.D.2d 987, 619 N.Y.S.2d 987, 1994 N.Y. App. Div. LEXIS 12002

Opinion

—Judgment unanimously affirmed. Memorandum: On appeal from a judgment convicting him of depraved indifference murder (Penal Law § 125.25 [2]), charged in count two of the indictment, defendant argues that County Court erred in refusing his request to instruct the jury to consider count one, which charged, in the alternative, intentional murder (Penal Law § 125.25 [1]), and any lesser included offenses under that count before considering count two. We conclude that the court properly instructed the jury to consider intentional murder, as charged in count one, and, if it found defendant not guilty of that crime, to consider the alternative crime of depraved indifference murder, as charged in count two. The court properly instructed the jury to consider the lesser included offenses of manslaughter in the first and second degrees only if it acquitted defendant of murder in the second degree under both counts (cf., People v Tondryk, 176 AD2d 1194, lv denied 79 NY2d 833; see, People v Rogers, 166 AD2d 23, 26-27, lv denied 78 NY2d 1129).

We have reviewed defendant’s remaining arguments and conclude that they are without merit. (Appeal from Judgment of Monroe County Court, Connell, J.—Murder, 2nd Degree.) Present—Pine, J. P., Lawton, Fallon, Davis and Boehm, JJ.