Opinion
April 18, 1995
Appeal from the Supreme Court, Bronx County (Richard Lee Price, J.).
We find that the substitution was a proper exercise of discretion in view of the court clerk's report to the Trial Judge that the juror had called in sick with a back ailment and was not likely to return for three or four days (People v Harris, 204 A.D.2d 240, lv denied 84 N.Y.2d 826) and the fact that the trial had already been delayed on five previous occasions.
Defendant's claim that the court erred in submitting the intentional and depraved indifference murder counts to the jury in the conjunctive, rather than in the alternative, is unpreserved for appellate review as a matter of law, defendant having raised the issue only after the verdict had been rendered and the jury discharged (People v Satloff, 56 N.Y.2d 745), and we decline to review it in the interest of justice. If we were to review it, we would find it to be without merit. "While it is true that a person cannot commit a single homicidal act while entertaining inconsistent mental states" (People v Tankleff, 199 A.D.2d 550, 553 [citing People v Gallagher, 69 N.Y.2d 525], affd 84 N.Y.2d 992), "[h]ere, however, unlike in Gallagher, more than one mens rea could have existed simultaneously" (People v Campbell, 208 A.D.2d 641, 642), there being a reasonable view of the evidence that defendant fired his gun at one person with the intent to kill him and also recklessly engaged in conduct that created a grave risk of death to the decedent (supra).
Concur — Ellerin, J.P., Rubin, Tom and Mazzarelli, JJ.