OPINION OF THE COURT
Per Curiam.The principal question which divides the court on this appeal is whether a reversal is warranted on the ground that the defendant was convicted of both intentional murder (Penal Law § 125.25 [1]) and manslaughter in the second degree (Penal Law § 125.15 [1]) for the fatal shooting of one person. While a new trial is not required on this basis, in the interest of justice, the judgment appealed from should be modified by reversing the conviction of manslaughter in the second degree.
The defendant was charged by the Grand Jury of Suffolk County with two counts of murder in the second degree, arising out of the shooting death of Jack Sweeney, which climaxed a St. Patrick’s Day celebration, marked by the defendant’s imbibing of significant quantities of liquor over a 24-hour period.
The first count of the indictment accused the defendant of the intentional murder of Sweeney (Penal Law § 125.25 [1]) and the second count alleged that the defendant had caused Sweeney’s death under circumstances evincing a depraved *301indifference to human life, by recklessly engaging in conduct which created a grave risk of death (Penal Law § 125.25 [2]).
Viewing the evidence adduced at the trial in the light most favorable to the prosecution, as we must (see, People v Kennedy, 47 NY2d 196, 203; People v Tucker, 102 AD2d 535, 536), we are in unanimous agreement that any rational trier of fact would be justified in finding that the defendant was guilty, beyond a reasonable doubt, of either of the crimes of which he was convicted, intentional murder and reckless manslaughter (see, People v Contes, 60 NY2d 620, 621; People v Lopez, 111 AD2d 186). The facts with respect thereto are fully set forth in the opinion of our dissenting colleague.
Prior to the submission of this case to the jury, the trial court, during the presummation conference, announced its intention to submit both murder counts to the jury, and in addition, to submit manslaughter in the first degree (Penal Law § 125.20 [1]) as a lesser included offense under the intentional murder count, and manslaughter in the second degree (Penal Law § 125.15 [1]) as a lesser included offense under the depraved indifference murder count. Defense counsel objected to this proposed charge, contending, inter alia, that the defendant could not be convicted under both counts of murder, and that the two murder counts should be submitted only in the alternative. The objection was renewed following the court’s charge to the jury.
The jury thereafter deliberated and returned a verdict convicting the defendant of intentional murder under count one, as charged, and reckless manslaughter under count two, as a lesser included offense of depraved indifference murder.
After the jury’s discharge, defense counsel moved unsuccessfully to set aside the verdict on the ground of inconsistency. This motion was renewed prior to sentencing, and was again denied.
On appeal the defendant argues that the trial court was required by statute to submit to the jury the various counts in the alternative, and that its failure to do so requires vacatur of both convictions. Moreover, it is contended that the verdict was fatally inconsistent or repugnant, inasmuch as it is factually impossible for the defendant to have both "intentionally” and "recklessly” caused the death of Sweeney.
We disagree with the defendant’s contention that the two counts charged in the indictment, intentional murder (Penal Law § 125.25 [1]) and depraved indifference murder (Penal *302Law § 125.25 [2]) were inconsistent counts which should have been submitted to the jury in the alternative (CPL 300.30 [5]; 300.40 [5]).
The two counts were "non-inclusory concurrent counts”. They were "concurrent counts” (CPL 300.30 [3]), because both offenses were alleged to have been committed through a single act (the shooting of the victim) and, therefore, any sentences which might have been imposed thereon would necessarily have to be concurrent (see, Penal Law § 70.25 [2]). However, the two counts were "non-inclusory”, in that both counts charged crimes of the same degree, murder in the second degree, but each crime required proof of an element not essential to the other and hence, neither was a lesser included offense of the other (CPL 300.30 [4]; 1.20 [37]; cf. People v Register, 60 NY2d 270, cert denied 466 US 953). Since there was no mandatory requirement that the two counts of the indictment be submitted to the jury in the alternative, we find that the trial court did not abuse its discretion, as a matter of law, by submitting both counts to the jury with instructions that it return a separate verdict as to each (CPL 300.40 [3] [a]).
In addition, the trial court properly submitted a lesser included offense under each of the two indictment counts (CPL 300.50 [1]; 1.20 [37]) and the jury was correctly instructed to consider each lesser included offense in the alternative to its respective greater offense (CPL 300.50 [1], [4]).
While reckless manslaughter (Penal Law § 125.15 [1]) is a lesser included offense of intentional murder (People v Murray, 40 NY2d 327, 335, cert denied 430 US 948; People v Green, 56 NY2d 427, 433, rearg denied 57 NY2d 775), the two crimes are not mutually exclusive or self-contradictory, inasmuch as the lower mental state required to prove reckless manslaughter is included and subsumed within the higher mental state required to elevate the crime to intentional murder (People v Green, supra, at pp 432-433; People v Stanfield, 36 NY2d 467, 471). The defendant argues that one who acts intentionally, i.e., with the conscious objective of bringing about a particular result, cannot, simultaneously act recklessly, i.e., with conscious disregard of a substantial and unjustifiable risk that such result will occur (see, People v Green, supra, at p 439 [dissenting opn of Gabrielli, J.]; see also, 1 CJI [NY] 14.02 at 733-734). Nevertheless, the Court of Appeals has considered and rejected that argument, holding, as a matter of law, that where two crimes require the same act and result and differ only as to the required mental state, it is impossible to *303commit the crime requiring the higher culpable mental state without concomitantly committing the lesser crime (People v Green, supra; People v Perez, 45 NY2d 204, 209-210; People v Stanfield, supra). Thus, we find nothing inherently self-contradictory in the jury’s verdict in this case, by which the defendant was found guilty of both intentional murder and reckless manslaughter. Simply put, the finding of guilt as to one of the two counts does not exclude the same finding as to the other. Therefore, the defendant’s repugnancy or inherent inconsistency claim must fail.
Finally, it is noted that after the trial court indicated that it would submit both the intentional murder and the depraved indifference murder counts to the jury, defense counsel could, but did not specifically request that reckless manslaughter be submitted to the jury as a lesser included offense of the intentional murder count. Therefore, the court’s failure to so instruct the jury does not constitute error (CPL 300.50 [1], [2]; People v Green, supra, at p 430). But, "a defendant should not be convicted and punished more than once for conduct which, although constituting only one prohibited act, may, because of statutory definition, be theorized as constituting separate criminal acts” (People v Perez, 45 NY2d 204, 209, supra). Thus, under the facts of this case, the conviction of the lesser included count of manslaughter in the second degree should be reversed and the sentence imposed thereon vacated (see, People v Lee, 39 NY2d 388, 390; People v Grier, 37 NY2d 847; People v Oglesby, 84 AD2d 541; People v Reid, 58 AD2d 611).
We agree with our dissenting colleague with respect to the other issues raised by the defendant.