| People v Osborne |
| 2009 NY Slip Op 02037 [60 AD3d 1310] |
| March 20, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v ChristopherH. Osborne, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Wendy Evans Lehmann of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.), renderedJune 29, 2005. The judgment convicted defendant, after a nonjury trial, of, inter alia,manslaughter in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby reversing those parts convicting defendant of driving while intoxicated and unlicensedoperation of a motor vehicle and dismissing counts 7, 8 and 11 of the indictment and as modifiedthe judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him after a bench trial of,inter alia, manslaughter in the second degree (Penal Law § 125.15 [1]), vehicularmanslaughter in the second degree (§ 125.12 [former (2)]), assault in the second degree(§ 120.05 [4]), vehicular assault in the second degree (§ 120.03 [1]), driving whileintoxicated (Vehicle and Traffic Law § 1192 [2], [3]), and aggravated unlicensedoperation of a motor vehicle in the first degree (§ 511 [3] [a] [i]). The People correctlyconcede that counts 7 and 8, charging defendant with driving while intoxicated, are lesserinclusory concurrent counts of count 2, charging defendant with vehicular manslaughter in thesecond degree; and that count 11, charging defendant with unlicensed operation of a motorvehicle, is a lesser inclusory concurrent count of count 6, charging defendant with aggravatedunlicensed operation of a motor vehicle. Thus, counts 7, 8 and 11 must be dismissed as a matterof law (see generally People vMoore, 41 AD3d 1149, 1152 [2007], lv denied 9 NY3d 879, reconsiderationdenied 9 NY3d 992 [2007]), and we therefore modify the judgment accordingly.
Defendant did not object to the verdict on the grounds that it was inconsistent both to findhim guilty of manslaughter in the second degree and vehicular manslaughter, and to find himguilty of assault in the second degree and vehicular assault, and defendant thus failed to preservefor our review his contention with respect to the alleged inconsistencies (see CPL 470.05[2]). We decline to exercise our power to review defendant's contention as a matter of discretionin the interest of justice (see generallyPeople v Griffin, 48 AD3d 1233, 1234 [2008], lv denied 10 NY3d 840 [2008];People v Eccleston, 161 AD2d 1184, 1185 [1990], lv denied 76 NY2d 855[1990]). We reject the further contention of defendant that defense counsel's failure to ask thecourt to consider those counts in the alternative deprived him of effective assistance of counsel.Although we agree with [*2]defendant that defense counselshould have asked the court to do so, we note that this was a bench trial (cf. People v Smith, 30 AD3d 693,693-694 [2006]), that defendant was acquitted of murder in the second degree (Penal Law§ 125.25 [4]), that the evidence is legally sufficient to support the more serious charges,and that the sentences on the inconsistent counts run concurrently with respect to each other. Wetherefore conclude that defendant received meaningful representation (see People vBenevento, 91 NY2d 708, 712 [1998]), and that the "single lapse by otherwise competentcounsel" did not deprive defendant of his constitutional right to effective assistance of counsel(People v Turner, 5 NY3d 476,478 [2005]). Present—Scudder, P.J., Martoche, Centra, Fahey and Peradotto, JJ.