Opinion
November 7, 1994
Appeal from the Supreme Court, Kings County (Pincus, J.).
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 A.D.2d 80).
The defendant's remaining contention lacks merit. Bracken, J.P., Santucci, Krausman and Goldstein, JJ., concur.