People v. Peralta

Casey, J.

Appeal from a judgment of the County Court of Albany County (Keegan, J.), rendered December 21, 1992, upon a verdict convicting defendant of the crime of attempted robbery in the first degree.

Defendant and five codefendants were indicted on charges of attempted robbery and felony murder arising out of the death of Eric Hendrix in the City of Albany. Defendant was also charged with intentional murder. Four of the accomplices entered pleas of guilty to a lesser charge. Defendant and the remaining codefendant were tried before separate juries. Defendant was found not guilty on both murder counts and guilty on the attempted robbery count. The codefendant was acquitted of all charges.

Defendant’s only contention on appeal is that the jury’s finding of not guilty on the felony murder charge and the finding of guilty on the underlying felony charge are so inconsistent that the verdict is repugnant. The claim was not timely raised before the jury was discharged (see, People v Satloff, 56 NY2d 745). In any event, consideration of defendant’s claim in the context of County Court’s charge to the jury (see, People v Tucker, 55 NY2d 1, 7) reveals that the jury’s verdict was not inherently self-contradictory. The court charged the jury that it could find defendant guilty of felony murder if defendant caused the death of Hendrix while in the course of and in the furtherance of the attempted robbery. The jury could reasonably have found that defendant committed attempted robbery but did not himself cause the death of Hendrix (see, People v Burgos, 177 AD2d 314, lv denied 79 NY2d 944).

Cardona, P. J., Crew III, White and Yesawich Jr., JJ., concur. Ordered that the judgment is affirmed, and matter remitted to the County Court of Albany County for further proceedings pursuant to CPL 460.50 (5).

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