PEOPLE v. CASTELLANO (2007)

Judgment, Supreme Court, Bronx County (Caesar Cirigliano, J.), rendered January 11, 2005, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 15 years to life, unanimously affirmed.

 Defendant's challenge to the sufficiency of the evidence is preserved for review as a matter of law because defendant complied with the trial court's directive as to the timing of his sufficiency arguments.   However, his current arguments concerning the court's jury instructions relating to depraved indifference murder and intoxication were never raised below, and are therefore unpreserved, and we decline to reach them in the interest of justice.   Accordingly, the sufficiency of the evidence must be evaluated not in light of the elements of the crime as they have recently been articulated by the Court of Appeals (see e.g. Policano v. Herbert, 7 N.Y.3d 588, 825 N.Y.S.2d 678, 859 N.E.2d 484 [2006] ), but in light of the elements as they were charged to the jury (see People v. Sala, 95 N.Y.2d 254, 260, 716 N.Y.S.2d 361, 739 N.E.2d 727 [2000];  People v. Woods, 36 A.D.3d 525, 828 N.Y.S.2d 361 [2007] ).

 Defendant was acquitted of intentional murder and convicted of depraved indifference murder in connection with the fatal stabbing of the decedent.   Although the People's theory was that defendant repeatedly stabbed the victim with homicidal intent, defendant testified that, while intoxicated, he swung a knife wildly in an effort to free himself from the decedent and another person.   Given defendant's testimony, we reject his contention that the evidence could only support a finding of intent.   Under the evidence presented, the jury could have reasonably credited portions of defendant's testimony that supported a finding of reckless rather than intentional conduct, while at the same time rejecting his justification defense.

 The proof was also sufficient to establish the element of depraved indifference (see People v. Suarez, 6 N.Y.3d 202, 208-15, 811 N.Y.S.2d 267, 844 N.E.2d 721 [2005];  People v. Payne, 3 N.Y.3d 266, 270-272, 786 N.Y.S.2d 116, 819 N.E.2d 634 [2004];  People v. Gonzalez, 1 N.Y.3d 464, 468-469, 775 N.Y.S.2d 224, 807 N.E.2d 273 [2004] ).   The act of wildly flailing a knife at multiple persons, without intending to kill or injure, is, under the standards charged the jury, akin to the classic depraved indifference situations of firing a gun into a crowd or driving an automobile along a crowded sidewalk (see Suarez, 6 N.Y.3d at 214, 811 N.Y.S.2d 267, 844 N.E.2d 721;  Payne, 3 N.Y.3d at 271, 786 N.Y.S.2d 116, 819 N.E.2d 634;  People v. Jean-Baptiste, 38 A.D.3d 418, 833 N.Y.S.2d 31 [2007] ).