Opinion
November 15, 1993
Appeal from the Supreme Court, Kings County (Lagana, J.).
Ordered that the judgment is affirmed.
Michael Simmons and the defendant had a verbal argument which turned into a fist-fight on Lexington Avenue in Brooklyn. The defendant went into his apartment, got a gun, and chased Michael Simmons and his sister down the street. As the two ran away and turned to look back, the defendant kneeled down on one knee and shot Simmons in the chest, killing him. After a jury trial, the defendant was convicted, inter alia, of both depraved indifference murder in the second degree and manslaughter in the first degree.
Because the defendant did not move to set aside the verdict as inconsistent until his sentencing, which was one month after the jury had rendered its verdict and had been discharged, his argument that the verdict is inconsistent is unpreserved for appellate review (see, CPL 470.05; People v Pagan, 132 A.D.2d 681; see also, People v Satloff, 56 N.Y.2d 745, 746, rearg denied 57 N.Y.2d 674 [claim of inconsistent verdict waived where no objection is raised prior to discharge of the jury]).
Furthermore, contrary to the defendant's contention, the court properly instructed the jury that the defendant could be found guilty of either intentional murder or depraved indifference murder but not both (see, People v Gallagher, 69 N.Y.2d 525, 528).
We have considered the defendant's remaining contentions and find them to be unpreserved for appellate review (see, CPL 470.05) and, in any event, without merit. Rosenblatt, J.P., Ritter, Copertino and Pizzuto, JJ., concur.