Opinion
May 29, 1990
Appeal from the County Court, Nassau County (Boklan, J.).
Ordered that the judgment is affirmed.
The defendant's contention that the trial court erred in refusing to charge depraved indifference murder (see, Penal Law § 125.25) and felony murder (see, Penal Law § 125.25) in the alternative is without merit. Unlike the crime of intentional murder (see, Penal Law § 125.25; People v Gallagher, 69 N.Y.2d 525), in order to support a conviction for felony murder it need not be established that the defendant acted with intent to cause death; the only intent required to be proven is the intent to commit the underlying felony (see, People v Luscomb, 292 N.Y. 390, 395; People v. Reinig, 147 A.D.2d 971, cert denied ___ US ___, 110 S Ct 153). A reasonable view of the evidence in this case supports the conclusion that the defendant attempted to rape the victim and, in the course and furtherance of that felony, caused her death (see, Penal Law § 125.25), and at the same time recklessly engaged in conduct which created a grave risk of death to the victim, thereby causing her death (see, Penal Law § 125.25). Thus, the counts of the indictment which charged felony murder and depraved indifference murder are not inconsistent counts (see, CPL 300.30), and the court was not required to charge them in the alternative (see, People v. Paxhia, 140 A.D.2d 962, 963; see also, People v. Sampson, 145 A.D.2d 910; People v. Cisco, 129 A.D.2d 805).
We have considered the defendant's remaining contentions, including his claim that the sentence imposed is excessive, and find them to be without merit. Mangano, P.J., Brown, Sullivan and Balletta, JJ., concur.