Summary
finding that defendant's conviction for depraved indifference murder was appropriate because a reasonable jury could have concluded that, although defendant did not have the conscious objective to cause the victim's death when he acted, his conduct of firing several shots during his struggle with the victim was “reckless” and “evinc[ed] a depraved indifference to human life”
Summary of this case from Rivera v. CuomoOpinion
September 29, 2000.
Appeal from Judgment of Monroe County Court, Connell, J. — Murder, 2nd Degree.
PRESENT: PIGOTT, JR., P. J., PINE, HURLBUTT, SCUDDER AND KEHOE, JJ.
Judgment unanimously affirmed.
Memorandum:
According great deference to the jury's determination after viewing the witnesses, we conclude that the verdict rejecting defendant's justification defense is not against the weight of the evidence ( see, People v. Bleakley, 69 N.Y.2d 490, 495; People v. Hutzler, 270 A.D.2d 934, lv denied 94 N.Y.2d 948). We further conclude that the conviction of murder in the second degree (Penal Law § 125.25 [depraved indifference murder]) is supported by legally sufficient evidence ( see, People v. Bleakley, supra, at 495). The evidence establishes that defendant pulled a gun from his waistband during an altercation with the unarmed victim and maintained possession and control of the gun during their ensuing struggle. Several shots were fired during the struggle, two of which struck the victim. Thus, there is a valid line of reasoning and permissible inferences that could lead a rational person to conclude that, although defendant did not have the conscious objective of causing death, he pulled the trigger recklessly and under circumstances evincing a depraved indifference to human life. Nor is the verdict against the weight of the evidence ( see, People v. Bleakley, supra, at 495; see generally, People v. Rosario, 208 A.D.2d 961, 962, lv denied 85 N.Y.2d 913; People v. Marsh, 140 A.D.2d 631, lv denied 72 N.Y.2d 1047; People v. Languena, 129 A.D.2d 587, lv denied 70 N.Y.2d 649).