Opinion
(1373) KA 98-05668.
November 9, 2001.
(Appeal from Judgment of Supreme Court, Erie County, Burns, J. — Murder, 2nd Degree.)
PRESENT: PIGOTT, JR., P.J., GREEN, WISNER AND KEHOE, JJ.
Judgment unanimously affirmed.
Memorandum:
Defendant was convicted of murder in the second degree (Penal Law § 125.25 [depraved indifference murder]) in connection with the death of his girlfriend. The evidence, viewed in the light most favorable to the prosecution ( see, People v. Contes, 60 N.Y.2d 620, 621), establishes that the cause of death was strangulation. Contrary to defendant's contention, evidence of death by strangulation is legally sufficient to support a conviction of depraved indifference murder ( see, People v. Soto, 240 A.D.2d 768, lv denied 90 N.Y.2d 911; People v. De Jac, 219 A.D.2d 102, 106, lv denied 88 N.Y.2d 935; People v. Robinson, 205 A.D.2d 836, lv denied 84 N.Y.2d 831). Further, after weighing the relative force of the conflicting testimony on cause of death, we conclude that the verdict is not against the weight of the evidence ( see, People v. Bleakley, 69 N.Y.2d 490, 495). Contrary to defendant's contention, the prosecutor did not comment on defendant's failure to testify. Defendant's additional contention that the prosecutor impermissibly vouched for the credibility of his witnesses is not preserved for our review ( see, CPL 470.05), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( see, CPL 470.15 [a]).