The opinion of the court was delivered by: Friedman, J., J.
Appellate Division, First Department
Decided on January 22, 2013
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.
Luis A. Gonzalez,P.J. David Friedman Dianne T. Renwick Sallie Manzanet-Daniels Nelson S. Roman, JJ.
Defendant appeals from the judgment of the Supreme Court, New York County (Lewis Bart Stone, J.), rendered February 10, 2011, convicting him, after a jury trial, of reckless endangerment in the first degree, and sentencing him.
This appeal from a conviction for reckless endangerment in the first degree presents the recurring issue of what constitutes "circumstances evincing a depraved indifference to human life." We find that the jury's determination that this element of the offense was proven comports with the weight of the evidence.
Defendant admits that, during the morning rush hour of August 15, 2005, he threw bottles and plates from a 26th-floor hotel balcony overlooking Seventh Avenue, in the vicinity of Penn Station. Admittedly, defendant -- who was then 24 years old -- engaged in this callous and self-evidently dangerous behavior for no purpose other than to amuse himself and his friends. Although defendant claims that he was intoxicated at the time, videotapes of the incident show no evidence of significant impairment of his physical coordination; he successfully executed two cartwheels while holding a beer bottle, and sprinted toward the balcony's ledge, with no hint of staggering, while steadily holding a glass in his hand. As to his mental faculties, defendant admits that, in spite of his drinking, he had enough of his wits about him to suspend his antics when he saw police on the street below and on the roof of the building across Seventh Avenue, only to resume tossing objects off the balcony when he saw that the police had left the area. Moreover, at trial, defendant testified that he could still "remember everything [he] did" that morning.
Based on uncontroverted evidence of the conduct described above, a jury convicted defendant of reckless endangerment in the first degree, a crime of which a person is guilty "when, under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person" (Penal Law § 120.25). On appeal, defendant raises no objection to the instructions that the jury received, nor does he claim that any of the evidence presented against him was irrelevant or unfairly prejudicial. Further, he admits (as he did at trial) that, by throwing bottles and plates from a height of 26 stories above a public boulevard, he "recklessly engage[d] in conduct which create[d] a grave risk of death to another person," thereby satisfying two of the three elements of first-degree reckless endangerment. Defendant argues, however, that the jury's verdict was against the weight of the evidence to the extent he was found to have acted with "a depraved indifference to human life." Therefore, contends defendant, his conviction should be reduced to reckless endangerment in the second degree (Penal Law § 120.20), a misdemeanor having no depraved indifference element.*fn1 The dissent would accede to this request, opining that defendant's conduct, while it was reckless and created a grave risk of death to others, "reflected [only] stupidity and drunken thoughtlessness," not depraved indifference to human life. We disagree.
At the outset, in conducting a weight-of-the-evidence review, while we must determine whether the jury " failed to give the evidence the weight it should be accorded'" (People v Romero, 7 NY3d 633, 643 , quoting People v Bleakley, 69 NY2d 490, 495 ), still we should not " substitute [our]selves for the jury,'" whose determinations are entitled to " [g]reat deference'" based on its " opportunity to view the witnesses, hear the testimony and observe demeanor'" (Romero, 7 NY3d at 644, quoting Bleakley, 69 NY2d at 495). Here, given the great deference owed to the jury's determinations, it cannot be said that the jury failed to give the evidence the weight it should be accorded in finding that defendant acted with depraved indifference to human life.
What sets depraved indifference apart from mere recklessness is that the former involves "an utter disregard for the value of human life -- a willingness to act not because one intends harm, but because one simply doesn't care whether grievous harm results or not" (People v Suarez, 6 NY3d 202, 214  [emphasis added]). "In other words, a person who is depravedly indifferent is not just willing to take a grossly unreasonable risk to human life -- that person does not care how the risk turns out" (People v Lewie, 17 NY3d 348, 359 ). It is in this abject indifference to the possible consequences of the conduct at issue that the "wickedness, evil or inhumanity" (Suarez, 6 NY3d at 214) of the depravedly indifferent actor lies. Moreover, "[t]he mens rea of depraved indifference to human life can, like any other mens rea, be proved by circumstantial evidence" (People v Feingold, 7 NY3d 288, 296 ). Thus, in this case, the jury's finding that defendant acted with depraved indifference is not negated in any way by his apparent lack of a specific intention to harm anyone when he threw objects from the 26th-floor balcony. Rather, it is precisely because the jury could reasonably determine that defendant was aware of the risk he was creating, and did not care whether or not that risk came to fruition, that the finding that he acted with depraved indifference should be upheld.
The grave risk of death created by defendant's heinous conduct was glaringly obvious. Plainly, defendant could not have failed to appreciate what was likely to happen if a bottle or plate thrown from the height of 26 stories hit a pedestrian or the windshield of a motor vehicle that someone was driving. Nevertheless, defendant asks us to overturn the jury's depraved indifference finding based on his alleged intoxication at the time of the incident and on his self-serving testimony that it simply "[d]idn't cross [his] mind" that he was endangering the lives of the people below. The jury, however, had every right to discredit any implication by defendant that he did not contemplate that people on Seventh Avenue could be harmed by his conduct, even if he was somewhat under the influence of alcohol at the time. After all, by his own admission, defendant was sufficiently rational and self-aware to stop throwing things from the balcony when he saw police in the area, apparently looking for the source of the objects that were crashing onto the street below. And, given the physical coordination with which he performed cartwheels and other movements (as shown on the videotapes of the incident), and his professed clear recollection of the events of that morning, the notion that defendant was so profoundly inebriated as to be unaware of the grave danger obviously created by his actions can only be described as risible (see People v Wells, 53 AD3d 181, 191 [1st Dept 2008], lv denied 11 NY3d 858  [in affirming convictions for depraved-indifference murder and depraved-indifference assault, this Court noted that, although the defendant was "extremely intoxicated," he "was not so ...