David Sweet v. Floyd Bennett, Superintendent of Elmira Correctional Institution

JOHN M. WALKER, Jr., Chief Judge,

concurring.

I fully concur in Judge Parker’s opinion dismissing, with prejudice, Sweet’s § 2254 petition. I write separately with respect to the merits of Sweet’s claim to highlight New York’s confusing interpretation of its “inconsistent verdicts” statute.

Sweet argues that he was denied the effective assistance of counsel when his trial counsel failed to object to charging the jury with both second-degree murder and first-degree manslaughter as inconsistent. Inconsistent counts may not be charged in the conjunctive because it is not possible for a defendant to…