Summary
displaying a gun in bar and holding finger on the trigger knowing it was loaded, constituted depraved indifference murder
Summary of this case from Diaz v. MantelloOpinion
November 26, 1990
Appeal from the Supreme Court, Kings County (Pesce, J.).
Ordered that the judgment is affirmed.
Viewing the evidence in a light most favorable to the People (People v. Contes, 60 N.Y.2d 620, 621), we find that it was legally sufficient to establish the defendant's guilt of depraved indifference murder beyond a reasonable doubt. The evidence established that the defendant went to a bar with an unlicensed gun and, knowing it was loaded, removed it from its holster and displayed it, while holding his finger on the trigger. When the defendant and the bartender struggled to gain control of the weapon (see, People v. Languena, 129 A.D.2d 587), it discharged four times (see, People v. Fenner, 61 N.Y.2d 971), the first two shots going astray, but the latter two inflicting the wounds which were responsible for the bartender's death. The defendant then fled from the bar without summoning medical aid (see, People v. Kanelos, 107 A.D.2d 764), and hid the gun in a crawl space in his father's apartment building. The jury was thus entitled to find that the defendant created a grave risk of the bartender's death and caused his death under circumstances evincing a depraved indifference to human life (see, Penal Law § 125.25; People v. Roe, 74 N.Y.2d 20; People v. Licitra, 47 N.Y.2d 554; People v. Watson, 156 A.D.2d 403; People v. Languena, supra).
The defendant's challenge to the court's refusal to charge criminally negligent homicide (see, Penal Law § 125.10) as a lesser included offense of murder in the second degree (see, Penal Law § 125.25) is foreclosed by reason of the jury's verdict finding him guilty of murder in the second degree, the crime alleged in the indictment, and its implicit rejection of the charged lesser-included offenses of first and second degree manslaughter (see, People v. Boettcher, 69 N.Y.2d 174, 180; People v. Kanelos, supra).
The defendant's remaining contentions, including the one raised in his supplemental pro se brief, are either unpreserved for appellate review or without merit. Harwood, J.P., Balletta, Miller and O'Brien, JJ., concur.