Opinion
February 26, 1990
Appeal from the County Court, Rockland County (Nelson, J.).
Ordered that the judgment is affirmed.
On the evening of March 31, 1987, in the hallway of a rooming house located at 3 Main Street, Haverstraw, New York, the defendant, who had been drinking all day long with Jimmy Rodriguez, stabbed Rodriguez 10 times, killing him.
Viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt of murder in the second degree beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (CPL 470.15). In the instant case, the People proved that the defendant, although drinking heavily, was able to form the requisite intent to murder, and there is no basis in the record for disturbing the jury's verdict (see, People v Sanbolin, 133 A.D.2d 654; People v Donohue, 123 A.D.2d 77; People v Norman, 118 A.D.2d 597).
Furthermore, the court properly charged the jury with respect to manslaughter in the first degree as a lesser included offense of murder in the second degree (intentional murder). Since the jury found the defendant guilty of the higher of these two charges, the defendant's contention that the Judge should have charged the jury with respect to manslaughter in the second degree is academic (see, People v Boettcher, 69 N.Y.2d 174; People v Richette, 33 N.Y.2d 42).
The defendant's claim regarding the repugnancy of the verdict was unpreserved for appellate review due to his failure to raise the issue prior to the discharge of the jury (see, CPL 470.05; People v Stahl, 53 N.Y.2d 1048; People v Holmes, 104 A.D.2d 1049), and, in any event, is lacking in substance. Kooper, J.P., Harwood, Rosenblatt and Miller, JJ., concur.