Opinion
May 27, 1988
Appeal from the Monroe County Court, Mark, J.
Present — Denman, J.P., Green, Pine, Balio and Davis, JJ.
Judgment unanimously modified on the law and as modified affirmed, in accordance with the following memorandum: On appeal from a judgment convicting defendant of felony murder, depraved mind murder and related crimes, he raises several claims, none requiring reversal. The court did not abuse its discretion in finding defendant competent to proceed without holding a hearing since defendant's counsel did not request a hearing and the court properly relied upon the reports of two psychiatrists finding defendant competent (see, CPL 730.30; People v Bronson, 115 A.D.2d 484; People v Armlin, 90 A.D.2d 880, 881; People v Lacher, 59 A.D.2d 725). Although the court erred in failing to charge intentional murder and depraved mind murder in the alternative (People v Gallagher, 69 N.Y.2d 525), defendant did not preserve the claim by timely objection (People v Lipton, 54 N.Y.2d 340, 351). We decline to reach the claim in the interest of justice because the evidence supports the jury verdict that defendant both intended to cause serious physical injury (see, Penal Law § 125.20) and recklessly engaged in conduct which created a grave risk of death (see, Penal Law § 125.25; People v Walker, 58 A.D.2d 737). Moreover, the court did not err in failing to submit the felony murder count in the alternative because felony murder does not depend upon a particular mental state (see, People v Berzups, 49 N.Y.2d 417, 427). We have considered defendant's remaining claims including those in his pro se brief and find that none requires reversal. We also note that although defendant's reference to the trial transcript of codefendant Arieno was appropriate, after considering such testimony, we do not find that it requires reversal.
As the People concede, however, the sentences of 6 to 25 years on the manslaughter and first degree robbery convictions and the sentence of 4 1/2 to 15 years on the second degree robbery conviction were incorrect because the court was required to set the minimum at one third the maximum imposed (Penal Law § 70.00 [b], [c]; [3] [b]; § 70.02 [1] [a], [b]; [2] [a]; [3], [4]). Since the court's intention to impose the maximum sentences is clear from the record and a modification would have no practical effect in view of the concurrent sentences imposed for the murder convictions, we need not remand for resentencing and impose minimum terms of 8 1/3 years on the manslaughter and first degree robbery convictions and 5 years on the second degree robbery conviction (Penal Law § 70.02). In all other respects, the judgment is affirmed.