
    The People of the State of New York, Respondent, v Stephen Merkel, Appellant.
   Judgment unanimously reversed on the law and new trial granted. Memorandum: The judgment convicting defendant of intentional murder in the second degree and depraved mind murder in the second degree arising out of the same incident must be reversed because the court refused to charge the two counts in the alternative (see, People v Gallagher, 69 NY2d 525). The issue was preserved for appellate review because defense counsel objected to the court’s charge in this regard and, after the verdict was rendered and before the jury was discharged, he asked the court to have the jury reconsider its verdict because it was repugnant.

We have reviewed defendant’s contentions that the statement defendant gave to the police and the statement he gave to the witness, Puccio, should have been suppressed and we find them to be without merit. We see no reason to disturb the suppression court’s findings that defendant was read his Miranda rights and knowingly and voluntarily waived them, and that defendant was not so intoxicated that he did not understand his rights. We also agree with the suppression court’s finding that Puccio was not an agent of the police. (Appeal from judgment of Supreme Court, Monroe County, Mark, J.— murder, second degree.) Present — Dillon, P. J., Boomer, Green, Lawton and Davis, JJ.  