Summary
In People v. Finkelstein (144 A.D.2d 250) this court, citing People v. Gallagher (supra), specifically determined that a person "who acts intentionally in causing the death of a person (manslaughter in the first degree [Penal Law § 125.20 (1)]) cannot at the same time act recklessly in causing the same death (manslaughter in the second degree [Penal Law § 125.15 (1)] * * *)" (supra, 144 A.D.2d, at 250).
Summary of this case from People v. RogersOpinion
November 3, 1988
Appeal from the Supreme Court, New York County (Carol Berkman, J.).
It is axiomatic that a person cannot be convicted of two contradictory manslaughter charges with respect to one homicide. One who acts intentionally in causing the death of a person (manslaughter in the first degree [Penal Law § 125.20 (1)]) cannot at the same time act recklessly in causing the same death (manslaughter in the second degree [Penal Law § 125.15 (1)]; see, People v. Gallagher, 69 N.Y.2d 525, 529; see also, People v Ramirez, 76 A.D.2d 115, 118).
When inconsistent or contradictory counts of an indictment are submitted to a jury, the court should submit them in the alternative rather than the conjunctive and direct the jury that if it renders a guilty verdict on one count, it must render a verdict of not guilty upon the other (People v. Brown, 32 A.D.2d 760, affd without opn 27 N.Y.2d 499; see also, People v Claudio, 135 A.D.2d 358, 359; CPL 300.40.) The same rule applies where an indictment is tried by the court sitting without a jury (CPL 320.20).
Thus, after finding defendant guilty of first degree or intentional manslaughter, the trial court should have found him not guilty of second degree or reckless manslaughter. "The act is either intended or not intended; it cannot simultaneously be both". (People v. Gallagher, supra, 69 N.Y.2d, at 529.)
While, generally, the issue of inconsistent verdicts is not preserved for review unless raised prior to the discharge of the jury, when any infirmity might be remedied by resubmission of its verdict to the jury for reconsideration (People v. Stahl, 53 N.Y.2d 1048, 1050), the same considerations would seem not to apply in the case of a nonjury trial. (See, United States v. Maybury, 274 F.2d 899; People v. Tucker, 55 N.Y.2d 1, 6, n 3.) In the instant case, although the issue was not raised prior to its verdict, the trial court, at sentencing, expressed its doubt as to whether defendant was properly convicted of both counts and left it to this court to resolve the question.
Accordingly, under the circumstances, we act in the interest of justice to correct a patently contradictory verdict. We have examined the other points raised by defendant and find them without merit.
Concur — Murphy, P.J., Kupferman, Ross, Ellerin and Wallach, JJ.