PEOPLE v. RIVERA (2005)

Judgment, Supreme Court, Bronx County (Phylis Skloot Bamberger, J.), rendered January 29, 2003, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 24 1/212 years to life, and order, same court and Justice, entered on or about May 26, 2004, which denied defendant's CPL 440.10 motion to vacate the judgment, unanimously affirmed.

 Defendant's challenge to the sufficiency of the evidence establishing depraved indifference murder is unpreserved and we decline to review it in the interest of justice.   Were we to review this claim, we would find that the jury could have reasonably concluded that defendant lacked homicidal intent, but instead acted under circumstances evincing a depraved indifference to human life when he impulsively began firing wildly in a small grocery store, endangering numerous persons (see People v. Payne, 3 N.Y.3d 266, 272, 786 N.Y.S.2d 116, 819 N.E.2d 634 [2004];  People v. Sanchez, 98 N.Y.2d 373, 748 N.Y.S.2d 312, 777 N.E.2d 204 [2002] ).

The record establishes that defendant received effective assistance of counsel (see People v. Benevento, 91 N.Y.2d 708, 713-714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998];  People v. Hobot, 84 N.Y.2d 1021, 1024, 622 N.Y.S.2d 675, 646 N.E.2d 1102 [1995];  see also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ).

We have considered and rejected defendant's remaining claims.