People v. Thomas , 543 N.Y.S.2d 513 ( 1989 )

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Aiello, J.), rendered January 6, 1987, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Viewing the evidence in a light most favorable to the prosecution (see, People v Contes, 60 NY2d 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 (CPL 470.15 [5]).

We find that the court’s charge of intentional murder (Penal Law § 125.25 [1]) and depraved indifference murder (Penal Law § 125.25 [2]) in the conjunctive rather than in the alternative constituted error (see, People v Gallagher, 69 NY2d 525). However, the defendant was not prejudiced by this charge as he was acquitted of intentional murder, and the error was therefore harmless.

We have examined the defendant’s other claims of error and find them to be without merit. Mangano, J. P., Brown, Lawrence and Eiber, JJ., concur.