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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. David J. HORNING, Defendant-Appellant.

Decided: July 09, 1999

PRESENT:  LAWTON, J.P., HAYES, WISNER, HURLBUTT and SCUDDER, JJ. Richard L. Baumgarten, Richard L. Baumgarten & Associates, Buffalo, for defendant-appellant. Melvin Bressler, Pittsford, for plaintiff-respondent.

 Defendant contends that the jury verdict convicting him of depraved mind murder in the second degree (Penal Law § 125.25[2] ) and manslaughter in the first degree (Penal Law § 125.20[1] ) is repugnant.   The People respond that defendant's contention is not preserved for our review and, in any event, is without merit.   We disagree.   Defendant preserved his contention for our review by raising that issue before the jury was discharged (see generally, People v. Alfaro, 66 N.Y.2d 985, 987, 499 N.Y.S.2d 378, 489 N.E.2d 1280).   Furthermore, because defendant “was convicted for acting intentionally and recklessly as to the same result, the death of the victim” (People v. Trappier, 87 N.Y.2d 55, 59, 637 N.Y.S.2d 352, 660 N.E.2d 1131), the jury verdict is repugnant (see, People v. Robinson, 145 A.D.2d 184, 538 N.Y.S.2d 122, affd. 75 N.Y.2d 879, 554 N.Y.S.2d 473, 553 N.E.2d 1021;  see also, People v. Gallagher, 69 N.Y.2d 525, 516 N.Y.S.2d 174, 508 N.E.2d 909).   Consequently, the judgment must be reversed and a new trial granted.

Judgment unanimously reversed on the law and new trial granted.


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