PEOPLE v. ARCE (1997)

Judgment, Supreme Court, Bronx County (John Moore, J.), rendered December 7, 1994, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 25 years to life, unanimously affirmed.

 Defendant's guilt of second-degree murder under a theory of depraved indifference (PL 125.25[2] ) was amply supported by the evidence, notwithstanding that the evidence would have also supported a finding of intentional murder (People v. Cole, 233 A.D.2d 247, 650 N.Y.S.2d 127, 128, lv. denied 89 N.Y.2d 984, 656 N.Y.S.2d 743, 678 N.E.2d 1359).

 Defendant was not entitled to be present at a hearing conducted in the course of his cross-examination to determine the purely legal question of whether he had opened the door to the admission of evidence previously precluded at a Sandoval hearing to which he was a party (People v. Dickerson, 87 N.Y.2d 914, 640 N.Y.S.2d 865, 663 N.E.2d 906;  People v. Rodriguez, 85 N.Y.2d 586, 590-91, 627 N.Y.S.2d 292, 650 N.E.2d 1293).   The court correctly determined that defendant had opened the door to this previously precluded evidence.

We perceive no abuse of sentencing discretion.

MEMORANDUM DECISION.