Opinion
1999-01913
Submitted October 11, 2001.
December 24, 2001.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Flaherty, J.), rendered February 8, 1999 convicting him of murder in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.
Lynn W. L. Fahey, New York, N.Y. (Debra E. Baker of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Jeanette Lifschitz, and Kathleen Murray of counsel), for respondent.
Before: CORNELIUS J. O'BRIEN, J.P., GLORIA GOLDSTEIN, ROBERT W. SCHMIDT, NANCY E. SMITH, JJ.
ORDERED that the judgment is affirmed.
Viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt of depraved indifference murder beyond a reasonable doubt. The People adduced evidence that the defendant acted recklessly with attendant circumstances that objectively created a very grave and substantial risk of death. Eyewitnesses testified that after a minor verbal altercation, the defendant, who had been drinking and smoking marihuana, pursued the victim with a gun, which was ultimately discharged in the victim's face at close range, causing the victim's death. A jury's verdict should be accorded great weight, and if, as here, its conclusion is rational, the court is "not free to vacate a conviction based on a finding of recklessness merely because [it] consider[s] that a finding of intent would have been more plausible in light of the evidence" (People v. Tankleff, 199 A.D.2d 550, 554, affd 84 N.Y.2d 992).
O'BRIEN, J.P., GOLDSTEIN, SCHMIDT and SMITH, JJ., concur.