Judgment, Supreme Court, New York County (Ronald A. Zweibel, J. at suppression hearing; Renee A. White, J. at lineup application, jury trial and sentence), rendered May 18, 2004, convicting defendant of murder in the second degree and criminal possession of a weapon in the third degree, and sentencing him to concurrent terms of 25 years to life and 7 years, respectively, affirmed.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Mazzarelli, J.P., Andrias, Buckley, Catterson, McGuire, JJ.
In resolving defendant's previous appeal to this Court (43 AD3d 288 ), we did not expressly state that we rejected defendant's claim that the verdict convicting him of depraved indifference murder was against the weight of the evidence. For this reason, the Court of Appeals reversed and remanded the appeal to us for the purpose of making an assessment of defendant's weight of the evidence claim (10 NY3d 875, 878 ). We now make explicit what was implicit in our prior opinion: the verdict was not against the weight of the evidence. A review of our prior opinion and its holdings helps explain this finding and our continuing disagreement with the dissent. Accordingly, we quote below the most relevant portions of the opinion:
"Defendant's principal claim on this appeal is a two-fold challenge to the sufficiency and weight of the evidence supporting the verdict convicting him of depraved indifference murder. Specifically, defendant argues that his action could have supported a finding only of intentional, not reckless, murder and that, even if his conduct were reckless, the proof was deficient with regard to the uncommon brutality' essential to a conviction for depraved indifference murder. As defendant concedes, however, his challenges to the sufficiency of the evidence are not preserved for review. Indeed, defendant not only failed to move to dismiss on the specific grounds he raises on appeal, he failed to raise any specific objection to the sufficiency of the evidence in his motion to dismiss (see People v Gray, 86 NY2d 10, 19 ; CPL 470.05).
"We decline to review in the interest of justice the untimely challenges to the sufficiency of the evidence that defendant now advances. Moreover, at the most, given defendant's failure to voice any objection to the court's charge on the elements of the crime of depraved indifference murder, any challenge to the sufficiency of the evidence that defendant may be entitled to raise must be evaluated according to the court's charge as given (see People v Sala, 95 NY2d 254, 260  [appellate review limited to whether there was legally sufficient evidence ... based on the court's charge as given without exception'] [emphasis in original]; People v Dekle, 56 NY2d 835, 837  [limiting appellate review to whether there is evidence from which a rational trier of fact could find the essential facts of the crimes as those elements were charged to the jury without exception beyond a reasonable doubt'] [emphasis in original]).
"Measured against this standard, the evidence was plainly sufficient. For several reasons grounded in the evidence, the jury reasonably could have concluded that defendant had intended not to kill but to cause serious physical injury. In this regard, we note that, according to one of the two eyewitnesses, defendant was some 30 feet away when defendant fired the pistol. Thus, the jury had a basis for concluding that defendant may not have intended that the bullet strike the victim where it did. As Justice Sandler stated, with the possible exception of a contact wound ... it is a matter of common experience that people who fire handguns do not always hit precisely the intended target' (People v Butler, 86 AD2d 811, 815 [1982, Sandler, J., dissenting], revd on dissenting mem, 57 NY2d 664 ). In addition, defendant fired only once and the jury heard no evidence that there had been a history of animosity between defendant and his brother or even that defendant had a motive to kill. For these very reasons, defense counsel urged in his summation that although the prosecution may have proven an intent to cause serious physical injury, there was no proof of an intent to kill.
"The instructions to the jury on the elements of depraved indifference murder were entirely unremarkable in light of the then-applicable law. Under those instructions, the jury reasonably could have concluded, after finding that defendant intended to cause serious physical injury, that defendant acted with the recklessness required for depraved indifference murder (see People v Trappier, 87 NY2d 55, 59  [ Defendant, for example, could have fired at Hutchinson with the intent to cause him only serious and protracted disfigurement and simultaneously consciously disregarded a substantial and unjustifiable risk that ... he would create a grave risk of ... Hutchinson's death']; Fama v Commissioner of Correctional Servs., 235 F3d 804, 812 [2d Cir 2000] [the jury could have concluded that Fama intended to cause bodily harm to Hawkins with a reckless disregard of the ultimate result of that harm']). To be sure, in People v Suarez (6 NY3d 202 ), which was decided more than two years after defendant's trial, the Court of Appeals ruled otherwise, stating that one who acts with the conscious intent to cause serious injury, and who succeeds in doing so, is guilty only of manslaughter in the first degree' (6 NY3d at 211). Defendant's jury, however was not so instructed and this statement of the law in Suarez only underscores that defendant's challenges to the sufficiency of the evidence are unpreserved.
"Furthermore, under the instructions given to the jury, the jury also was entitled to conclude that the shooting had been committed [u]nder circumstances evincing a depraved indifference to human life' (Penal Law § 125.25). The evidence, of course, must be sustained as legally sufficient whenever there is any valid line of reasoning and permissible inferences [that] could lead a rational person to convict' (People v Santi, 3 NY3d 234, 246  [internal quotation marks and citation omitted]). Here, the jury was instructed that the People were required to prove that the circumstances surrounding the defendant's reckless conduct was [sic] so brutal, so call[o]us and extremely dangerous and inhumane as to demonstrate an attitude of total and utter disregard for the life of the endangered person, and, therefore, so blameworthy as to warrant the imposition of the same criminal liability as that which the law imposes on a person who intentionally causes the death of another.' As this element was charged to the jury, a rational juror could have concluded that the People had met this burden.
"Nor can defendant prevail, in the absence of review in the interest of justice, by contending that the verdict is against the weight of the evidence. Casting his argument in those terms does not relieve defendant of the consequences of his failure to object to the court's charge on the elements of depraved indifference murder (see People v Noble, 86 NY2d 814, 815  [ Contrary to defendant's contention, we hold that the Appellate Division is constrained to weigh the evidence in light of the elements of the crime as charged without objection by defendant']; People v Cooper, 88 NY2d 1056, 1058-1059  [same]). Indeed, a panel of this Court recently rejected the contention that in reviewing the weight of the evidence in a depraved indifference murder case the evidence should be appraised in light of the elements of that crime as definitively interpreted by the Court of Appeals as of the time of the appeal, rather than as the elements were charged to the jury as of the time of trial (see People v Danielson, 40 AD3d 174 , lv granted 2007 NY Slip Op. 70483[u]). Nor is defendant persuasive in arguing that [a]pplication of the well-established principle that an appellate court must conduct its weight review in light of the charge as given does not bar relief ... because the court's charge was not inconsistent with [the charge to the jury in People v Suarez, 6 NY3d 202 (2005), supra].' However similar in certain respects the jury instructions may be, the sufficiency claims in Suarez, unlike the sufficiency claims here, were preserved for review" (43 AD3d at 289-292).
In its opinion, the Court of Appeals did not disturb our holding that the evidence was legally sufficient or our holdings that both the sufficiency and the weight of the evidence had to be evaluated in light of the elements of the crime of depraved indifference murder as the elements were charged to the jury without exception. That the Court did not disturb our holding that the weight of the evidence must be evaluated in that light is unsurprising. After we decided defendant's prior appeal, the Court squarely held that "[s]itting as the thirteenth juror ... the reviewing court must weigh the evidence in light of the elements of the crime as charged to the other jurors, even when the law has changed between the time of trial and the time of appeal" (People v Danielson, 9 NY3d 342, 349  [emphasis added]).
Although "the differences between what the jury does and what the appellate court does in weighing evidence are delicately nuanced" (People v Bleakley, 69 NY2d 490, 495 ), the fundamental precepts of weight of the evidence review are clear:
"[W]eight of the evidence review requires a court first to determine whether an acquittal would not have been unreasonable. If so, the court must weigh conflicting testimony, review any rational inferences that may be drawn from the evidence and evaluate the strength of such conclusions. Based on the weight of the credible evidence, the court then decides whether the jury was ...