Opinion
2002-09307.
Decided April 12, 2004.
Appeal by the defendant from a judgment of the County Court, Westchester County (Smith, J.), rendered September 10, 2002, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.
Stephen J. Pittari, White Plains, N.Y. (Salvatore A. Gaetani of counsel), for appellant.
Jeanine Pirro, District Attorney, White Plains, N.Y. (Valerie A. Livingston and Richard Longworth Hecht of counsel), for respondent.
Before: ANITA R. FLORIO, J.P., ROBERT W. SCHMIDT, WILLIAM F. MASTRO, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the court properly submitted to the jury two counts of murder in the second degree ( see Penal Law §§ 125.25 and 125.25), with careful instructions to consider only one of the two theories ( see People v. Sanchez, 98 N.Y.2d 373; People v. Gallagher, 69 N.Y.2d 525, 529-30). The defendant further contends that Penal Law §§ 125.25(2) and 125.15(1) are indistinguishable and therefore submission of both charges constituted error. Because the defendant requested the Penal Law § 125.15(1) charge, he failed to preserve his claim of error for appellate review ( see People v. Richardson, 88 N.Y.2d 1049, 1051; People v. Ford, 62 N.Y.2d 275, 283). In any event, the Court of Appeals has rejected the argument that the two statutes are indistinguishable ( see People v. Roe, 74 N.Y.2d 20, 24-25 People v. Register, 60 N.Y.2d 270, 276-277 cert denied 466 U.S. 953). A contrary ruling by the United States District Court for the Southern District of New York ( see Jones v. Keane, NYLJ, June 7, 2002, at 25, col 3) is not binding on this court ( see Matter of DeBellis v. Property Clerk of City of N.Y., 79 N.Y.2d 49, 57; People v. Brown, 235 A.D.2d 344).
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 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 ( see CPL 470.15).
FLORIO, J.P., SCHMIDT, MASTRO and RIVERA, JJ., concur.