People v. Robinson , 145 A.D.2d 184 ( 1989 )

OPINION OF THE COURT

Dillon, P. J.

Defendant was charged in a two-count indictment with intentional murder in the second degree (Penal Law § 125.25 [1]) and depraved mind murder in the second degree (Penal Law § 125.25 [2]). The People offered proof at trial that on January 19, 1985 defendant punched and kicked the victim into a state of unconsciousness, bound him with electrical cord, transported him to a public park and abandoned him there on the snow-covered ground. The medical examiner testified that the victim died of hypothermia.

Following the court’s charge to the jury and before deliberations began, defendant excepted to the court’s instructions concerning possible jury verdicts. He argued that the murder counts must be submitted to the jury in the alternative. After colloquy among the court and counsel which left the issue unresolved, the court recalled the jury for further instructions but again failed to submit the murder counts in the alternative. The jury found defendant guilty of manslaughter in the first degree (Penal Law § 125.20 [1]) as a lesser included offense of intentional murder and also found him guilty of depraved mind murder as charged in the second count of the indictment.

There must be a reversal and a new trial because the charge was erroneous. The two second degree murder counts charged in the indictment are inconsistent counts as defined in CPL 300.30 (5). "Where a defendant is charged with a single homicide, in an indictment containing one count of intentional murder and one count of depraved mind murder, both counts may be submitted to the jury, but only in the alternative” (People v Gallagher, 69 NY2d 525, 528). "Submission of a count” of an indictment is a term which is statutorily defined. It means "submission of the offense charged therein, or of a lesser included offense, or submission in the alternative of both the offense charged and a lesser included offense or offenses” (CPL 300.30 [1]). Thus, when the court elects to submit two inconsistent counts of an indictment to a jury, each count and its appropriate lesser included offenses must be submitted in the alternative to each other (see also, CPL 300.50 [1]) and in the alternative as well to the other count and its appropriate lesser included offenses.

When two inconsistent counts are submitted to the jury, "the court must direct the jury that if it renders a verdict of guilty upon one such count it must render a verdict of not guilty upon the other” (CPL 300.40 [5]). The jury should have been instructed, therefore, that defendant could be found guilty of either intentional murder or depraved mind murder or a. lesser included offense of either one.

The dissent is premised upon the plausible, but flawed, notion that defendant’s acts can simultaneously be intentional and reckless. We believe that the Court of Appeals made it clear in People v Gallagher (69 NY2d 525, supra) that the two culpable mental states are mutually exclusive. A jury must decide "which (if either) mental state defendant possessed at the time” of the acts which caused the death (supra, at 530). Here, as in Gallagher, "[bjecause the jury found defendant guilty of both intentional and reckless homicide, it is impossible to determine what if anything the jury decided on the issue of defendant’s mental state at the time of the offense” (supra, at 530).^* It follows that, as in Gallagher, a new trial is required.

Since defendant was acquitted of intentional murder in the second degree, further prosecution of that charge is barred by double jeopardy (see, People v Gonzalez, 61 NY2d 633). That count of the indictment is, therefore, dismissed, with leave to the People to re-present any appropriate charge to another Grand Jury. A new trial is granted on the depraved mind murder count of the indictment.

In view of that result, there is no need to review the other issues raised by defendant on appeal.

Accordingly, the judgment should be reversed and a new trial granted.

* In equating the verdict in Gallagher with the verdict here, we recognize that the intentional homicide of which Gallagher was found guilty was murder in the second degree (Penal Law § 125.25 [1]). This defendant’s conviction of manslaughter in the first degree (Penal Law § 125.20 [1]) is also a conviction of intentional homicide (Donnino, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law art 125, at 488; People v Willis, 107 AD2d 1058, 1059 [Hancock, Jr., and Denman, JJ., dissenting on other grounds]) and thus the language of Gallagher applies with equal force to this verdict.