The opinion of the court was delivered by: Graffeo, J.
This opinion is uncorrected and subject to revision before publication in the New York Reports.
The primary issue in this case is whether defendant's trial lawyer was ineffective because he did not ask the court to instruct the jury that it should consider the three homicide counts in the alternative. We conclude that defendant has not demonstrated that his attorney failed to provide meaningful representation and therefore affirm the order of the Appellate Division.
Defendant Avery V. Baker, Jr., lived with his then girlfriend and her 20-month-old son, Jordan, in the City of Elmira, Chemung County. On the evening of September 12, 2006, defendant grabbed Jordan by one arm, carried him to his room and slammed the child into his crib. Shortly thereafter, Jordan began making choking sounds and his mother found that he was turning blue in his face, his body was seizing and he appeared to be unconscious. The child was brought to a hospital and was released the next day.
Three days later, defendant got upset when he discovered crayon drawings on a television. Another child in the household claimed that Jordan was responsible for the markings, so defendant ordered his girlfriend to get Jordan. The boy was brought to defendant and he proceeded to spank the child. When Jordan would not stop crying, defendant picked him up, shook him violently and threw him to the floor head first. Jordan screamed and attempted to stand up but was unable to do so.
Defendant lifted Jordan, who went limp and stopped breathing. Jordan's mother wanted to call 911, but defendant told her that Jordan would "come out of it" like he did on September 12th. When defendant's attempts to revive Jordan were unsuccessful, he telephoned 911 for emergency assistance. Paramedics took the child to the hospital for treatment of severe head trauma and, three hours later, Jordan was pronounced dead.
During his conversations with police investigators, defendant made a series of inconsistent statements about what had happened to Jordan. He eventually admitted that he had spanked Jordan, shaken him and thrown the child to the floor. In a written statement, defendant explained that he threw Jordan "too hard" out of anger and revealed that he had thrown the child on two prior occasions, with one incident occurring on September 12th.
A grand jury indicted defendant for depraved indifference murder of a child (Penal Law § 125.25 ), manslaughter in the first and second degrees (Penal Law §§ 125.20 , 125.15 ), and endangering the welfare of a child (Penal Law § 260.10) stemming from the homicide on September 15, 2006. With respect to the September 12th incident, defendant was indicted for endangering the welfare of a child and reckless endangerment in the second degree (Penal Law § 120.20). At the People's request, County Court later dismissed the charge of endangering the welfare of a child related to the September 15th incident.
A jury ultimately found defendant guilty of the remaining charges and he was sentenced to an aggregate prison term of 21 years to life. The Appellate Division affirmed (58 AD3d 1069 ) and a Judge of this Court granted leave to appeal (12 NY3d 851 ).
At the trial, the court informed the parties that it intended to allow the jury to consider all three homicide counts and would not charge them in the alternative. Defense counsel agreed to this presentation under People v Trappier (87 NY2d 55 ). Defendant now asserts that his attorney's acquiescence constituted ineffective assistance of counsel because depraved indifference murder of a child, manslaughter in the first degree and manslaughter in the second degree are inconsistent counts that should have been charged to the jury in the alternative pursuant to People v Gallagher (69 NY2d 525 ).
To succeed on an ineffective assistance claim, a defendant must prove that trial counsel failed to provide meaningful representation (see e.g. People v Caban, 5 NY3d 143, 152 ; People v Benevento, 91 NY2d 708, 712 ; People v Baldi, 54 NY2d 137, 147 ). "A single error may qualify as ineffective assistance, but only when the error is sufficiently egregious and prejudicial as to compromise a defendant's right to a fair trial" (People v Caban, 5 NY3d at 152). In addition, even if a defendant shows that the lawyer erred, a defendant must further "demonstrate the absence of strategic or other legitimate explanations" for the error (People v Rivera, 71 NY2d 705, 709 ).
Deciding whether defendant's trial lawyer was ineffective when he agreed that the jury should consider all three homicide offenses requires us to assess our precedent addressing inconsistent counts. In Gallagher (69 NY2d 525 ), we explained that criminal charges must be considered in the alternative by the finder of fact if guilt of one charge is inconsistent with guilt of the other. If so, the jury may find the accused guilty of only one of the crimes because a finding of guilt on inconsistent counts results in a repugnant verdict. For example, a person cannot simultaneously intend to cause another person's death and at the same time consciously disregard a substantial risk that death will occur (see id. at 529). As a result of this inconsistency, Gallagher held that the crimes of intentional murder and depraved indifference murder must be charged in the alternative.
In Trappier, however, we recognized that "[a] defendant could certainly intend one result -- serious physical injury --while recklessly creating a grave risk that a different, more serious result -- death -- would ensue from his actions" (87 NY2d 55, 59 ). Thus, a jury may consider both attempted assault in the first degree and reckless endangerment in the first degree because those charges are not inconsistent and therefore do not have to be charged in the alternative. Based on the reasoning of Trappier, we recently determined that a defendant can be convicted of both first-degree intentional manslaughter (Penal Law § 125.20 ) and depraved indifference murder because the former crime requires an intent to inflict serious physical injury whereas the latter requires the reckless creation of a different result -- a grave risk of death (see Matter of Suarez v Byrne, 10 NY3d 523, 540-541 ).
Considering this precedent, we conclude that the counts of depraved indifference murder of a child and first-degree manslaughter as charged in the indictment were not inconsistent and it was proper to allow the jury to consider both offenses simultaneously rather than in the alternative. Depraved indifference murder of a child under Penal Law § 125.25 (4) requires that the defendant recklessly create a grave risk of serious physical injury or death under circumstances evincing a depraved indifference to human life.*fn1 In contrast, first-degree manslaughter under Penal Law § 125.20 (4) involves an intent to cause physical injury. As Trappier declared, a defendant can "certainly intend one result . . . while recklessly creating a grave risk of a different, more serious result" (87 NY2d at 59). Hence, trial counsel's failure to object to the court's proposed charge with respect to these two counts did not amount to ineffective legal assistance.
Whether manslaughter in the second degree should have been charged as a lesser-included, alternative offense of the count of depraved indifference murder of a child is a closer question. We have held that manslaughter in the second degree is a lesser included offense of depraved indifference murder under Penal Law § 125.25 (2) (see People v Atkinson, 7 NY3d 765, 766-767 ), but we have not examined whether that also applies to depraved indifference murder of a child under subdivision (4) of section 125.25. The Third and Fourth Departments have considered this issue and ruled that second-degree manslaughter is not a lesser included offense of depraved indifference murder of a child (see People v Heslop, 48 AD3d 190, 195-196 [3d Dept 2007], lv denied 10 NY3d 935 ; People v Robinson, 278 AD2d 798 [4th Dept 2000], lv denied 96 NY2d 762 ). Hence, it was not unreasonable for defendant's trial attorney to believe ...