Stanley E. Neustadter, New York City, for appellant.
Cyrus R. Vance, Jr., District Attorney, New York City (Martin J. Foncello and Vincent Rivellese of counsel), for respondent.
The order of the Appellate Division should be modified, by vacating defendant's conviction of depraved indifference murder, dismissing that count of the indictment and remitting to Supreme Court for resentencing and, as so modified, affirmed, with leave to the People, if so advised, to present a charge of manslaughter in the first degree to a new grand jury.
On this direct appeal, defendant argues that the evidence was legally insufficient to establish his guilt of depraved indifference murder. Viewed in the light most favorable to the People, defendant, after an altercation with Lee, obtained a gun, chased him down, and fired four or five shots at him at near point-blank range— acts inconsistent with a conviction for depraved indifference murder.
We have considered defendant's remaining arguments and find them to be without merit.
SMITH, J. (concurring).
I join the majority memorandum, and will explain in this opinion my reasons for doing so.
Defendant, a drug dealer, became involved in an argument
with Lavert Lee, a would-be purchaser of drugs. The argument escalated into a physical fight, in which defendant and Lee slapped each other, and a friend of defendant hit Lee with a bottle. While the friend and Lee continued to fight, defendant ran into a nearby building and came back with a gun. Lee fled into another building, and defendant followed him. Defendant fired four [983 N.E.2d 752] [959 N.Y.S.2d 675] or five shots, killing Lee with a bullet to the chest and wounding a bystander whom Lee tried to use as a shield.
These events happened in 1991. Defendant was a fugitive until 1995, when he was arrested and brought to trial on an indictment charging him with intentional murder (Penal Law § 125.25 ), depraved indifference murder (Penal Law § 125.25 ), assault and weapons offenses.
After the close of the evidence, defendant moved to dismiss the depraved indifference murder count, arguing that the evidence showed, if anything, an intentional homicide: " Either the jury will believe that this defendant ... intentionally went and got a gun, [and] shot and killed Lavert Lee.... Or if he didn't, then they're going to say that none of this is true." Defense counsel added: " I don't think there's any set of facts the People have pointed to that would indicate that the defendant committed the crime with reckless disregard. It's been the People's contention throughout that he intended to do this crime." The trial court denied the motion, concluding that " the facts in evidence are certainly consistent with a charge of reckless disregard."
The jury acquitted defendant of intentional murder, but convicted him of depraved indifference murder, assault and criminal possession of a weapon. Defendant filed a timely notice of appeal but, for reasons the record does not illuminate, did not file a brief in the Appellate Division for 14 years— until 2009. The Appellate Division, with one Justice dissenting, affirmed, rejecting defendant's argument that the evidence, while it would support a finding that he killed Lee intentionally, ...