PEOPLE v. CASPER III (2007)

 Defendant appeals from a judgment convicting him upon a jury verdict of murder in the second degree (Penal Law § 125.25[2] [depraved indifference] ).   Contrary to the contention of the People, we conclude that defendant's challenge to the legal sufficiency of the evidence is preserved for our review (see People v. Palmer, 34 A.D.3d 701, 702-703, 826 N.Y.S.2d 77, lv. denied 8 N.Y.3d 848, 830 N.Y.S.2d 707, 862 N.E.2d 799), and we further conclude that the evidence is legally insufficient to support the conviction (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   The evidence presented at trial established that defendant caused the death of his wife by causing or allowing the van in which she was a passenger to go over a cliff.   The jury acquitted defendant of intentional murder (§ 125.25[1] ), thus finding that the death was unintentional.   In our view, the evidence does not warrant a finding that defendant's conduct was “marked by uncommon brutality” (People v. Payne, 3 N.Y.3d 266, 271, 786 N.Y.S.2d 116, 819 N.E.2d 634, rearg. denied 3 N.Y.3d 767, 788 N.Y.S.2d 670, 821 N.E.2d 975), “or any other hallmarks of wanton recklessness necessary to demonstrate ‘circumstances evincing a depraved indifference to human life’ ” (People v. Dudley, 31 A.D.3d 264, 264, 819 N.Y.S.2d 237, lv. denied 7 N.Y.3d 866, 824 N.Y.S.2d 611, 857 N.E.2d 1142).   “Rather, while there is a rational view of the evidence that would support a finding that defendant's conduct was reckless, we conclude that such conduct ‘did not fall within the small, and finite, category of cases evidencing utter depravity, uncommon brutality and inhuman cruelty required for depraved indifference murder’ ” (People v. Gilmore, 41 A.D.3d 1162, 1164, 838 N.Y.S.2d 309, quoting People v. McPherson, 6 N.Y.3d 202, 216, 811 N.Y.S.2d 267, 844 N.E.2d 721).

 We further conclude, however, that there is sufficient evidence to sustain a conviction of the lesser included offense of manslaughter in the second degree (Penal Law § 125.15[1];  see People v. Packer, 31 A.D.3d 1169, 1170, 817 N.Y.S.2d 829, lv. denied 7 N.Y.3d 869, 824 N.Y.S.2d 614, 857 N.E.2d 1145).   Thus, we modify the judgment by reducing defendant's conviction of murder in the second degree to manslaughter in the second degree and vacating the sentence imposed on count two of the indictment (see CPL 470.15 [2][a] ), and we remit the matter to County Court for sentencing on the conviction of manslaughter in the second degree (see CPL 470.20[4] ).

 None of defendant's remaining contentions warrants reversal or further modification of the judgment.   Contrary to the contention of defendant, the case against him was not entirely circumstantial and thus the court did not err in refusing to give a moral certainty charge (see People v. Daddona, 81 N.Y.2d 990, 992, 599 N.Y.S.2d 530, 615 N.E.2d 1014;  People v. Gerard, 50 N.Y.2d 392, 397-398, 429 N.Y.S.2d 406, 406 N.E.2d 1343, rearg. denied 51 N.Y.2d 770, 432 N.Y.S.2d 1029, 411 N.E.2d 799;  People v. Barnes, 50 N.Y.2d 375, 379-380, 429 N.Y.S.2d 178, 406 N.E.2d 1071;  cf. People v. Von Werne, 41 N.Y.2d 584, 589-590, 394 N.Y.S.2d 183, 362 N.E.2d 982).   Where, as here, defendant's statements “ ‘could be interpreted as relevant admissions of guilt ․, there [i]s both direct and circumstantial evidence,’ and the court therefore [i]s not required to give a circumstantial evidence charge” (People v. Mastowski, 26 A.D.3d 744, 746, 808 N.Y.S.2d 871, lv. denied 6 N.Y.3d 850, 816 N.Y.S.2d 756, 849 N.E.2d 979, 7 N.Y.3d 815, 822 N.Y.S.2d 490, 855 N.E.2d 806;  see People v. Licitra, 47 N.Y.2d 554, 558-559, 419 N.Y.S.2d 461, 393 N.E.2d 456, rearg. denied 53 N.Y.2d 938, 440 N.Y.S.2d 1028, 423 N.E.2d 415;  People v. Rumble, 45 N.Y.2d 879, 880-881, 410 N.Y.S.2d 806, 383 N.E.2d 108;  People v. Burgos, 195 A.D.2d 978, 979, 600 N.Y.S.2d 878, lv. denied 82 N.Y.2d 752, 603 N.Y.S.2d 993, 624 N.E.2d 179).

 Defendant further contends that the court erred in referring to his written statement to the police as a “confession.”   Defendant did not object to the court's instruction on that specific ground and thus failed to preserve that contention for our review (see generally People v. Copeland, 30 A.D.3d 1022, 1023, 816 N.Y.S.2d 264, lv. denied 7 N.Y.3d 847, 823 N.Y.S.2d 776, 857 N.E.2d 71;  People v. Vassar, 30 A.D.3d 1051, 816 N.Y.S.2d 260, lv. denied 7 N.Y.3d 796, 821 N.Y.S.2d 826, 854 N.E.2d 1290), and defendant further waived that contention inasmuch as his proposed charge contained the same terminology (see generally People v. Wragg, 41 A.D.3d 1273, 838 N.Y.S.2d 755).   In any event, defendant's contention lacks merit.   The court permissibly referred to the “confession” only when discussing the abstract principle of law relating to that term, and the court otherwise referred to defendant's “statement” or “statements” (see People v. Kingston, 8 N.Y.2d 384, 386-387, 208 N.Y.S.2d 956, 171 N.E.2d 306).

Defendant similarly failed to preserve for our review his contention that the court erred in instructing the jury that defendant did “not raise any issue that the statement was obtained in violation of law” (see generally People v. Robinson, 88 N.Y.2d 1001, 648 N.Y.S.2d 869, 671 N.E.2d 1266).   In any event, that language, which is set forth in the model charge (see 1 CJI[N.Y.] 11.10), was appropriately charged in this case.   Although defendant at trial challenged his statement to the officers as unreliable or untruthful, he did not challenge the interrogation itself as having been conducted in violation of his constitutional rights.   Thus, when viewed in its entirety, the charge conveyed the proper legal standards for the jurors to apply to the facts of this case (see generally People v. Ladd, 89 N.Y.2d 893, 895-896, 653 N.Y.S.2d 259, 675 N.E.2d 1211;  People v. Brunson, 1 A.D.3d 375, 766 N.Y.S.2d 601, lv. denied 1 N.Y.3d 569, 775 N.Y.S.2d 786, 807 N.E.2d 899).

 Contrary to defendant's further contention, the court did not abuse its discretion in precluding defendant's accident reconstruction expert from providing certain opinion testimony, inasmuch as that testimony would have been speculative, i.e., it would have been unsupported by facts established on the record or fairly inferred therefrom (see generally People v. Cronin, 60 N.Y.2d 430, 432-433, 470 N.Y.S.2d 110, 458 N.E.2d 351;  People v. Robinson, 174 A.D.2d 998, 999, 572 N.Y.S.2d 159, lv. denied 78 N.Y.2d 1014, 575 N.Y.S.2d 822, 581 N.E.2d 1068;  People v. Bellini, 162 A.D.2d 693, 557 N.Y.S.2d 407, lv. denied 76 N.Y.2d 937, 563 N.Y.S.2d 66, 564 N.E.2d 676).

 The court did not err in admitting in evidence a note written by the victim under the state of mind exception to the hearsay rule.   The note was relevant to defendant's motive to harm the victim (see People v. Sutherland, 154 N.Y. 345, 351-353, 48 N.E. 518;  People v. Martinez, 257 A.D.2d 410, 683 N.Y.S.2d 81, lv. denied 93 N.Y.2d 876, 689 N.Y.S.2d 438, 711 N.E.2d 652;  cf. People v. Wlasiuk, 32 A.D.3d 674, 679-680, 821 N.Y.S.2d 285, lv. dismissed 7 N.Y.3d 871, 824 N.Y.S.2d 616, 857 N.E.2d 1147;  see generally Prince, Richardson on Evidence § 8-106 [Farrell 11th ed.] ).   Moreover, the circumstances sufficiently demonstrated that defendant had read the note before the homicide (see Sutherland, 154 N.Y. at 351-352, 48 N.E. 518).   The note was addressed to defendant and was found four days after the homicide, torn up in the garbage in defendant's garage.   Furthermore, the note was obviously written by the victim before the homicide, and referred to the victim's apparent sadness “this morning” about a “dream” of defendant that, according to other evidence in the case, had occurred two to three weeks prior to the homicide.   In any event, we conclude that any error in admitting the note in evidence is harmless (see Sutherland, 154 N.Y. at 353-354, 48 N.E. 518;  see generally People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified on the law by reducing the conviction of murder in the second degree (Penal Law § 125.25[2] ) to manslaughter in the second degree (§ 125.15[1] ) and vacating the sentence imposed on count two of the indictment and as modified the judgment is affirmed, and the matter is remitted to Ontario County Court for sentencing on the conviction of manslaughter in the second degree.

MEMORANDUM: