People v. Parker , 814 N.Y.S.2d 818 ( 2006 )

Carpinello, J.

Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered May 10, 2004, upon a verdict convicting defendant of the crime of murder in the second degree.

Defendant was indicted for both intentional and depraved indifference murder as a result of an incident in the early morning hours of December 27, 2002 wherein he shot and killed Pat Johnson (hereinafter the victim). Following a jury trial, he was acquitted of intentional murder but found guilty of depraved indifference murder. Sentenced to a prison term of 25 years to life, he now appeals. We affirm.

There can be no doubt that “[w]hat precisely distinguishes depraved indifference murder from other homicides has of late generated significant discussion” (People v Suarez, 6 NY3d 202, 207 [2005]; see People v Payne, 3 NY3d 266 [2004]; People v Gonzalez, 1 NY3d 464 [2004]; People v Hafeez, 100 NY2d 253 [2003]; People v Sanchez, 98 NY2d 373 [2002]). There can also be little doubt that the Court of Appeals’ recent pronouncements on the matter will all but put an end, except in the rarest of cases, to the People’s use of “twin indictments” wherein both intentional and depraved indifference murder are charged. However, the issue before this Court is limited to whether defendant’s conviction for depraved indifference murder, having himself been indicted in such a twin indictment, is against the weight of the evidence.¹

Upon our review of the trial evidence, in conjunction with the definition of depraved indifference as charged to the jury,² we find that the verdict was not against the weight of the evidence. In considering the proof in a neutral light and according due deference to the jury’s opportunity to hear the testimony and observe the demeanor of all witnesses (see e.g. People v Mateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946 [2004]; People v Cahill, 2 NY3d 14, 58 [2003]; People v Bleakley, 69 NY2d 490, 495 [1987]), we are satisfied that this verdict is not against the weight of the evidence and specifically reject the claim that the jury failed to give the evidence the weight that it should be accorded.

The evidence at trial established that defendant³ fired but a single shot across the street where several other people besides the victim were present after a night of drinking alcohol and smoking marihuana (see People v Fenner, 61 NY2d 971 [1984]; People v Jernatowski, 238 NY 188 [1924]). Just minutes earlier, defendant and his companions had stolen two separate vehicles outside a nearby pizza shop, one of which belonged to the victim. Upon locating these vehicles outside the apartment of defendant’s friend, the victim punched another of defendant’s friends in the face, knocking him to the ground. It was then that the single shot was fired.⁴

The distance between defendant, who was a novice user of the subject rifle, and the people across the street was hardly close. All of the witnesses testified that the “shooter” (see n 3, supra) was standing inside the hallway of a residence on the opposite side of the street. The victim, his girlfriend, their male companion and two of defendant’s own friends were located across the street from this residence near the victim’s parked car. Another of defendant’s friends was also in the immediate vicinity. Moreover, it was dark outside, the street was dimly lit and the weather was described as “a blizzard.” In our view, defendant’s conduct in firing from a doorway across the street in a direction where several people were present on a dark, snowy night established his indifference to the grave risk of death posed by his actions.

While the jury heard testimony from one witness, who acknowledged that he had changed his statement to police a couple of times and who was himself threatened with being charged with murder, that defendant allegedly told him that he put the scope on the victim’s chest that morning, they also heard evidence from the victim’s girlfriend that the victim was pacing back and forth on the street at the time the shot was fired. The jury further heard testimony that, just minutes before the shooting, defendant refused to participate in his companions’ decision to steal the victim’s car because he and the victim had been childhood friends. Thus, even though defendant would not participate in the relatively petty offense of stealing the victim’s car, defendant asserts that the only conclusion to be drawn from the evidence is that he acted only with intent to kill him just minutes later (compare People v Hafeez, 100 NY2d 253 [2003], supra; Policano v Herbert, 430 F3d 82 [2005]). The jury obviously, and reasonably in our view, disregarded this scenario which was within its province as the trier of fact.

In short, this was not a preplanned revenge shooting (cf. id.) or a one-on-one, point-blank shooting between feuding individuals, but a sudden and spontaneous act which endangered numerous people such that the verdict of depraved indifference, as opposed to an intentional killing, could have been reached (see People v Sanchez, 98 NY2d 373 [2002], supra; People v Fenner, supra; People v Jernatowski, supra; People v Baptiste, 306 AD2d 562 [2003], lv denied 1 NY3d 594 [2004]; cf. People v Payne, 3 NY3d 266 [2004], supra; People v Gonzalez, 1 NY3d 464 [2004], supra). In other words, there is ample record support for the jury’s decision that defendant’s conduct that morning was reckless and depraved rather than intentional and, therefore, the verdict must be upheld.

As a final matter, we note that the dissent places some reliance on comments made during summations when analyzing whether this verdict is against the weight of the evidence. In our view, such comments are irrelevant to the question of whether the jury’s verdict is against the weight of the evidence inasmuch as comments made in summation are simply not evidence (see generally People v Roche, 98 NY2d 70, 78 [2002]). Moreover, even though counsel for both sides spent considerable time marshaling the evidence vis-a-vis the intentional murder count in their summations, once the jury concluded that intent was not proven, it was capably left to its own deliberative devices in considering the depraved indifference count, regardless of whether it had been given guidance on this issue during summations. To this end, we find it telling that County Court, which itself had the opportunity to hear the evidence and was equally familiar with the facts of the case, noted on the record in denying a defense motion to set aside the verdict that “the jury reasonably could have concluded that this was a depraved indifference situation and not, as [counsel] indicate [d] in [their] closing arguments, an intentional murder under the first count of the indictment.”

Defendant’s remaining contentions, including the claim that his sentence was harsh and excessive, have been reviewed and determined to be unpersuasive.

Peters and Kane, JJ., concur.

1 . While defendant argues that the evidence was legally insufficient to support his conviction of depraved indifference murder, his general motions to dismiss upon the close of the People’s case and again at the close of all proof failed to properly preserve this specific claim (see People v Gray, 86 NY2d 10, 19 [1995]; People v Gibbons, 15 AD3d 196 [2005], lv denied 4 NY3d 886 [2005]; compare People v Breedlove, 26 AD3d 641 [2006]). Under the circumstances of this case, we decline to reverse defendant’s conviction in the interest of justice on this basis.

2 . In conducting a weight of the evidence analysis, this Court “ ‘is constrained to weigh the evidence in light of the elements of the crime as charged without objection by defendant’ ” (People v Cooper, 88 NY2d 1056, 1058 [1996], quoting People v Noble, 86 NY2d 814, 815 [1995]). Here, the jury was charged that depravity could be found where the circumstances surrounding the reckless conduct “made it so uncaring, so callous, so dangerous, and so inhuman as to demonstrate an attitude of total and utter disregard for the life of the person or persons endangered.” In our view, the evidence supported a finding of depraved indifference as so defined.

3 . Notably, not one witness identified defendant as the person who fired the shot that morning and no witness, including the victim’s friend and girlfriend who were present when the shot was fired, even knew that he was fatally injured until the next morning. Defendant testified on his own behalf and denied that he was the shooter. The jury’s acquittal on the intentional murder count and guilty verdict on the depraved indifference count signifies its conclusion that the evidence nevertheless established defendant as the shooter that morning but left a reasonable doubt as to whether he acted with the intent to kill the victim.

4 . The victim ran away and was later discovered lying face down in a snowbank, moving and attempting to speak. He ultimately died from massive blood loss. The pathologist who conducted the autopsy testified that the victim’s injury was of the type that could be treated and was not necessarily fatal.