OPINION OF THE COURT
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 hap *270 pened 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 [4]), manslaughter in the first and second degrees (Penal Law § 125.20 [4]; § 125.15 [1]), 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 (
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
(
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,
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
(
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” (
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
*272
indifference to human life.
*
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” (
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,
In any event, defendant has not shown that there was no legitimate tactical reason for trial counsel’s decision to accept the charge regarding second-degree manslaughter. Because it is undisputed that defendant caused the child’s death, it is conceivable that his attorney may have thought there was a benefit in giving the jury the option of considering the less serious homicide offense at the same time it deliberated over the depraved indifference murder and first-degree manslaughter charges. If jurors were split on either of the higher counts, defense counsel may have reasoned that they would compromise by convicting defendant of the less serious offense. Thus, counsel could have *273 concluded that submission of all three homicide counts created an opportunity for jury leniency. Defendant therefore has not demonstrated that he was denied his right to meaningful representation at trial.
Defendant also contends that he was denied a fair trial because the People used a projector to display the legal definitions of depraved indifference and recklessness to the jury during summation. Defendant believes that this created a risk that the jury would place undue emphasis on those definitions during deliberations and that the prosecutor usurped the trial judge’s duty to explain the law to the jury.
The slides in the record before us contain virtually verbatim definitions of depraved indifference murder and recklessness as set forth in the pattern Criminal Jury Instructions (CJI)
(see
CJI2d[NY] Penal Law § 125.25 [4]). Notably, the CJI instructions on depraved indifference incorporate our recent jurisprudence on the subject
(see e.g. People v Feingold,
Furthermore, during the trial judge’s pre-summation charge to the jury, he specifically advised: “I am responsible for setting forth the law, not the lawyers.” The judge also explained that the lawyers were given a copy of the court’s legal instructions before summations and might refer to those instructions during closing arguments. The judge cautioned the jurors that they had to “listen carefully to all the instructions that I will give you after the summations. And if you think there’s any difference between what the lawyers may have said and what I say the law is, your sworn duty as jurors is to follow my instructions on the law.” In the final charge, the court reiterated that the jurors were duty bound to “apply to the facts the law as I explain it.” The slides were not given to the jury to review during deliberations
(cf. People v Owens,
In our view, the judge’s instructions were sufficient to dispel any possibility that the jury would give precedence to or place undue emphasis on the prosecutor’s use of the slides
(see gener
*274
ally People v Tucker,
Defendant’s final contention is that his right to a public trial was violated when the court granted the prosecutor’s request to exclude the mother of defendant’s children from the trial because she was a potential witness. Courts have the discretion to exclude potential witnesses from the courtroom
(see People v Santana,
Accordingly, the order of the Appellate Division should be affirmed.
Chief Judge Lippman and Judges Ciparick, Read, Smith, Pigott and Jones concur.
Order affirmed.
Notes
Depraved indifference murder under subdivision (2) of Penal Law § 125.25 is different because it only applies to a grave risk of death, not a grave risk of serious physical injury.