PEOPLE v. SNOW (1997)

Judgment, Supreme Court, New York County (Nicholas Figueroa, J.), rendered March 30, 1994, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 23 years to life, unanimously affirmed.

The verdict was based on legally sufficient evidence.   Defendant was properly convicted of depraved indifference murder, since there was ample basis for the jury to conclude that defendant acted recklessly, rather than intentionally (see, People v. Tankleff, 199 A.D.2d 550, 554, 606 N.Y.S.2d 707, affd 84 N.Y.2d 992, 622 N.Y.S.2d 503, 646 N.E.2d 805).

The record supports the hearing court's finding that defendant's positioning in the lineup did not render the procedure unduly suggestive (see, People v. Rodriguez, 64 N.Y.2d 738, 485 N.Y.S.2d 976, 475 N.E.2d 443).

Defendant has provided no record supporting his claim that he was not present when three prospective jurors addressed the court individually and outside the presence of the balance of the jury panel, and the existing record demonstrates that he was actually present (see, People v. Maher, 89 N.Y.2d 318, 653 N.Y.S.2d 79, 675 N.E.2d 833).

 The trial court properly precluded, as too remote to be relevant, proposed evidence of alleged “stalking” by a former boyfriend of the victim that occurred one year prior to the murder (see, People v. Jones, 176 A.D.2d 174, 574 N.Y.S.2d 51, lv denied 79 N.Y.2d 859, 580 N.Y.S.2d 731, 588 N.E.2d 766).   The court also properly precluded proposed testimony regarding alleged harassment of the victim by a neighbor, as there was no “clear link” between the third party and the murder that would render such testimony relevant in this case (see, People v. Pack, 189 A.D.2d 787, 788, 592 N.Y.S.2d 393, lv denied 81 N.Y.2d 975, 598 N.Y.S.2d 776, 615 N.E.2d 233).

Defendant's additional claims of error are unpreserved and we decline to review them in the interest of justice.

MEMORANDUM DECISION.