People v. Johnson

—Judgment unanimously affirmed. Memorandum: On appeal from a judgment convicting him of depraved indifference murder (Penal Law § 125.25 [2]), charged in count two of the indictment, defendant argues that County Court erred in refusing his request to instruct the jury to consider count one, which charged, in the alternative, intentional murder (Penal Law § 125.25 [1]), and any lesser included offenses under that count before considering count two. We conclude that the court properly instructed the jury to consider intentional murder, as charged in count one, and, if it found defendant not…