Opinion
Argued October 21, 2008.
Decided November 25, 2008.
CROSS APPEALS, by the People by permission of a Justice of the Appellate Division of the Supreme Court in the Third Judicial Department, and by defendant by permission of an Associate Judge of the Court of Appeals, from an order of that Appellate Division, entered August 9, 2007. The Appellate Division modified, on the law, a judgment of the Schoharie County Court (George R. Bartlett, III, J.), which had convicted defendant, upon a jury verdict, of murder in the second degree. The modification consisted of reducing defendant's conviction of murder in the second degree to manslaughter in the second degree, vacating the sentence imposed thereon and remitting the matter to County Court for resentencing. The Appellate Division affirmed the judgment as modified.
Defendant shot the victim in the abdomen during an altercation on defendant's property after the victim arrived there in the company of defendant's estranged wife. The Appellate Division majority concluded that defendant's conviction, which preceded a change in the law regarding depraved indifference murder, was on direct appeal and not final; and that the Court was thus constrained to apply the recent changes in the law following the decision in People v Sanchez ( 98 NY3d 373) regarding depraved indifference to human life. The majority further concluded that the evidence did not support a conviction of depraved indifference murder, but was legally sufficient to convict defendant of the lesser included offense of manslaughter in second degree. While defendant acted recklessly by engaging in conduct creating a grave risk of death to another, a critical statutory element that separates second degree manslaughter from depraved indifference murder, defendant's underlying depraved indifference was not sufficiently shown, despite evidence that he prevented prompt calls to 911 after the shooting and told an EMT that he would shoot "any[one] who messe[d] with [his] wife."
People v George, 43 AD3d 560, affirmed.
McNamee, Lochner, Titus Williams, P.C., Albany ( David J. Wukitsch of counsel), for respondent-appellant.
James Sacket, District Attorney, Schoharie, for appellant-respondent.
OPINION OF THE COURT
The order of the Appellate Division should be affirmed.
Contrary to the People's contention, defendant properly preserved for our review his challenge to the legal sufficiency of his depraved indifference murder conviction ( see People v Hawkins, 11 NY3d 484 [decided today]).
The Appellate Division properly evaluated defendant's sufficiency challenge in light of our current decisional law on depraved indifference murder ( see People v Jean-Baptiste, 11 NY3d 539 [decided herewith]). We agree with the Appellate Division that the evidence was insufficient to establish that defendant acted with depraved indifference to human life, but was legally sufficient to convict him of the lesser included offense of manslaughter in the second degree (Penal Law § 125.15).
Chief Judge KAYE and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur.
Order affirmed in a memorandum.