Opinion
April 20, 1972
Appeal from a judgment of the County Court of Ulster County, rendered upon a jury verdict convicting defendant of the crime of manslaughter in the first degree. The only serious questions raised upon this appeal are whether the trial court committed reversible error in (1) refusing to require the People to elect between counts of the indictments, one charging intentional murder (Penal Law, § 125.25, subd. 1) and one charging reckless murder (Penal Law, § 125.25, subd. 2) on a motion made by defendant pursuant to section 279-a of the Code of Criminal Procedure; and (2) whether or not the trial court erred in finding by clear and convincing proof that the witness Sharnet's identification of the defendant had an independent basis and was not tainted by an improper line-up. The trial court submitted only the first count of intentional murder to the jury and we find no error in its denial of the motion to compel the People to elect which count to pursue during the trial. Considering the total circumstances of the case, we see no basis for disturbing its finding with respect to the admissibility of Sharnet's identification of the defendant. Judgment affirmed. Staley, Jr., J.P., Greenblott, Sweeney, Simons and Kane, JJ., concur.