Opinion
July 11, 1983
Appeal from the Supreme Court, Erie County, Doyle, J.
Present — Hancock, Jr., J.P., Callahan, Denman, Green and Moule, JJ.
Judgment unanimously affirmed. Memorandum: On his appeal from convictions for attempted murder in the second degree of one victim and murder in the second degree of another, defendant argues, among other things, that there should be a reversal and a new trial because the court's charge offended the rule in Sandstrom v Montana ( 442 U.S. 510) even though the error was not preserved for review (see People v Thomas, 50 N.Y.2d 467, 472). We disagree. In the first place, we do not read Connecticut v Johnson (460 US ___, 103 S Ct 969) as requiring us to reach the unpreserved issue as a matter of discretion pursuant to CPL 470.15 (subd 6). Even if we were to reach the issue, we would affirm because the charge is identical to that given in People v Gray ( 71 A.D.2d 295, 298-299) which we held was not contrary to Sandstrom. We have examined defendant's other contentions and find no basis for reversal.