Opinion
April 26, 1994
Appeal from the Supreme Court, New York County (Michael Corriero, J.).
Viewing the evidence in the light most favorable to the People and giving them the benefit of every reasonable inference, the People's evidence clearly established defendant's guilt beyond a reasonable doubt (People v Contes, 60 N.Y.2d 620, 621). Defendant's conduct in savagely beating, kicking and punching the victim, placing a plastic bag over her head, threatening her with a knife, agreeing to "finish her off", and then throwing her from a window 13 to 14 feet onto an enclosed concrete courtyard littered with metal debris and a jagged tree trunk clearly created a very substantial risk of death and evinced a depraved indifference to human life.
Defendant's claim with respect to the court's instruction on depraved indifference has not been preserved as a matter of law (CPL 470.05) and we declined to reach it in the interest of justice. Were we to reach it, we would find that the instruction was proper (see, People v Thomas, 178 A.D.2d 363, 364).
Concur — Rosenberger, J.P., Ellerin, Ross, Nardelli and Williams, JJ.