PEOPLE v. RODRIGUEZ (2006)

Defendant appeals from a judgment convicting him following a dual jury trial of murder in the second degree (Penal Law § 125.25[2] [depraved indifference] ), criminal possession of a weapon in the second degree (§ 265.03 [2] ), and criminal possession of a weapon in the third degree (§ 265.02[4] ).   Defendant's contentions concerning the jury charge on the affirmative defense of duress (§ 40.00) are unpreserved for our review and in any event are without merit.

 We agree with defendant, however, that County Court erred in submitting the depraved indifference murder count to the jury (see People v. Suarez, 6 N.Y.3d 202, 215, 811 N.Y.S.2d 267, 844 N.E.2d 721).   The record establishes that the victim was shot twice in the head, stabbed six times in the neck, shoulder and abdomen, and struck 13 times in the head with a hammer, causing four skull fractures.   Further, after the shootings, stabbings, and beatings, the victim was left alone in a burning house.   As the Court of Appeals has (since the trial of the instant matter) noted, the “use of a weapon can never result in depraved indifference murder when, as here, there is a manifest intent to kill” (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).   Further, “the more the defendant shoots (or stabs or bludgeons) the victim, the more clearly intentional is the homicide” (id. at 272, 786 N.Y.S.2d 116, 819 N.E.2d 634;  see Suarez, 6 N.Y.3d at 208-210, 811 N.Y.S.2d 267, 844 N.E.2d 721;  People v. Gonzalez, 1 N.Y.3d 464, 467-469, 775 N.Y.S.2d 224, 807 N.E.2d 273).   We therefore modify the judgment by reversing that part convicting defendant of depraved indifference murder and dismissing count two of the indictment.

Additionally, as we noted in People v. Boyer, 31 A.D.3d 1136, 817 N.Y.S.2d 813, the indeterminate sentence imposed on the conviction of criminal possession of a weapon in the third degree is illegal (see Penal Law § 70.02 [1] [c];  [2][c];  § 265.02[4] ), and we therefore further modify the judgment by vacating the sentence imposed for criminal possession of a weapon in the third degree and resentencing defendant to a determinate term of imprisonment of seven years on count five of the indictment to run concurrently with the sentence imposed on count four (see Boyer, 31 A.D.3d at 1139, 817 N.Y.S.2d 813;  see generally People v. LaSalle, 95 N.Y.2d 827, 828-829, 712 N.Y.S.2d 437, 734 N.E.2d 749).

Finally, the sentence, as modified by this Court, is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified on the law by reversing that part convicting defendant of murder in the second degree and dismissing count two of the indictment and by vacating the sentence imposed for criminal possession of a weapon in the third degree and as a matter of discretion in the interest of justice by resentencing defendant to a determinate term of imprisonment of seven years on count five of the indictment to run concurrently with the sentence imposed on count four of the indictment and as modified the judgment is affirmed.

MEMORANDUM: