Opinion
May 31, 1996
Appeal from the Supreme Court, Monroe County, Mark, J.
Present — Denman, P.J., Pine, Fallon, Wesley and Balio, JJ.
Judgment unanimously affirmed. Memorandum: By requesting that Supreme Court charge criminally negligent homicide as a lesser included offense of murder in the second degree under the first count of the indictment (intentional murder) and by failing to object when the court charged criminally negligent homicide as a lesser included offense of murder in the second degree under the second count of the indictment (depraved indifference murder), defendant waived any claim that there is no reasonable view of the evidence that she committed the lesser crime ( see, People v. Alvarado, 213 A.D.2d 1013, lv denied 86 N.Y.2d 732). Moreover, by failing to object to the submission of that charge on sufficiency grounds, defendant failed to preserve her sufficiency challenge for appellate review ( see, CPL 470.05; People v. Gray, 86 N.Y.2d 10).
The jury verdict is not contrary to the weight of the evidence ( see, People v. Bleakley, 69 N.Y.2d 490, 495). This Court must "weigh the evidence in light of the elements of the crime as charged without objection by defendant" ( People v. Noble, 86 N.Y.2d 814, 815). Thus viewed, the evidence supports the jury's determination that defendant created a substantial risk of her husband's death by shooting her husband and by failing to seek medical attention for him immediately after the shooting. Although the People's medical experts gave conflicting testimony regarding the likelihood that the victim could have survived the bullet wound to the heart, the jury's resolution of that conflict should not be disturbed ( see, People v. Gruttola, 43 N.Y.2d 116, 122; People v. DeJac, 219 A.D.2d 102).