Opinion
2000-05417
Submitted October 31, 2002.
November 18, 2002.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Tomei, J.), rendered May 15, 2000, convicting him of murder in the second degree (two counts), upon a jury verdict, and imposing sentence.
Lynn W. L. Fahey, New York, N.Y. (Denise A. Corsi of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Ruth E. Ross of counsel; Gregory N. Harris on the brief), for respondent.
Before: GABRIEL M. KRAUSMAN, J.P., GLORIA GOLDSTEIN, SANDRA L. TOWNES, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the Supreme Court properly declined to charge manslaughter in the second degree as a lesser-included offense of depraved indifference murder. Under no reasonable view of the evidence could the jury have found that the defendant committed the lesser offense but not the greater when he fired a semi-automatic nine-millimeter handgun into a crowd of people (see People v. Martin, 59 N.Y.2d 704; People v. Jernatowski, 238 N.Y. 188; People v. Jin Wai, 283 A.D.2d 326; People v. Reese, 271 A.D.2d 551).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80).
KRAUSMAN, J.P., GOLDSTEIN, TOWNES and RIVERA, JJ., concur.