New York Consolidated Laws, Penal Law - PEN § 210.20 Perjury;  pleading and proof where inconsistent statements involved

1. The indictment or information may set forth the two statements and, without designating either, charge that one of them is false and perjuriously made.

2. The falsity of one or the other of the two statements may be established by proof or a showing of their irreconcilable inconsistency.

3. The highest degree of perjury of which the defendant may be convicted is determined by hypothetically assuming each statement to be false and perjurious.  If under such circumstances perjury of the same degree would be established by the making of each statement, the defendant may be convicted of that degree at most.  If perjury of different degrees would be established by the making of the two statements, the defendant may be convicted of the lesser degree at most.