Opinion
January 9, 1995
Appeal from the County Court, Westchester County (Scarpino, J.).
Ordered that the judgment is affirmed.
During the course of a fight between the defendant and the victim, the two fell to the ground. The victim fell on top of the defendant and was in a headlock applied by the defendant. After the victim went limp, the defendant pulled free, stood up, kicked the victim in the head, and then jumped on him. The victim suffered a paralyzing spinal injury. The jury convicted the defendant of assault in the first degree on a theory of depraved indifference to human life.
Contrary to the defendant's contention, we find that, when viewed in the light most favorable to the People (see, People v Contes, 60 N.Y.2d 620), the evidence was legally sufficient to establish the defendant's guilt beyond a reasonable doubt (see, People v. Williams, 84 N.Y.2d 925). A person is guilty of assault in the first degree, inter alia, when "[u]nder circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes serious physical injury to another person" (Penal Law § 120.10). Depraved indifference to human life refers to the wantonness of a defendant's conduct and the focus is upon an objective assessment of the degree of risk presented by the defendant's reckless conduct (see, People v Roe, 74 N.Y.2d 20, 24; People v. Register, 60 N.Y.2d 270, 277, cert denied 466 U.S. 953; People v. Zebrowski, 198 A.D.2d 716, 718-719).
Under the circumstances surrounding this case, the jury could have rationally found that the supine and helpless condition of the victim, after the defendant had wrenched his neck, elevated the gravity of the risk produced by the defendant's subsequent kick to the victim's head and jumping on the victim's upper back, so as to evince the necessary depravity (compare, People v. Cofield, 197 A.D.2d 451; People v. Kilburn, 184 A.D.2d 914; People v. Nix, 173 A.D.2d 285; People v. Samuel, 138 A.D.2d 543; People v. Lucchese, 127 A.D.2d 699; with People v Asaro, 182 A.D.2d 823; People v. Thomas, 178 A.D.2d 363).
We have considered the defendant's remaining contentions and find them to be without merit. Miller, J.P., Lawrence, Ritter and Santucci, JJ., concur.