PEOPLE v. LAMPON (2007)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Gary, J.), rendered September 5, 2002, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant was indicted for both intentional murder (see Penal Law § 125.25[1] ) and depraved indifference murder (see Penal Law § 125.25 [2] ) in connection with the shooting and death of David Garcia on or about July 18, 2001.   The defendant moved for dismissal of the depraved indifference count of the indictment at the close of the People's case and at the close of all evidence on the ground that the People's evidence of the defendant's conduct was not consistent with “recklessness.”   The defendant did not specifically argue in his dismissal motions that the People's evidence was inconsistent with “depraved indifference.”   The motions were denied and the defendant was found guilty of depraved indifference murder.   On appeal, the defendant argues, inter alia, that the evidence was legally insufficient to sustain the conviction of depraved indifference murder.

 There was evidence of intoxication presented at trial which the jury could have found negated the defendant's intent to kill (see Penal Law § 15.25;  People v. Gonzalez, 6 A.D.3d 457, 773 N.Y.S.2d 889;  People v. Taylor, 245 A.D.2d 399, 666 N.Y.S.2d 445;  People v. Bergamini, 223 A.D.2d 548, 549, 636 N.Y.S.2d 396) without negating the defendant's reckless state of mind (see People v. Johnson, 277 A.D.2d 702, 704, 717 N.Y.S.2d 668).   Accordingly, the defendant's arguments that the trial evidence was not consistent with a reckless state of mind were, in effect, rejected by the jury.   Viewed in this context, the defendant's motions to dismiss, which were limited to recklessness without addressing depraved indifference (see People v. Payne, 3 N.Y.3d 266, 270-272, 786 N.Y.S.2d 116, 819 N.E.2d 634;  People v. Gonzalez, 1 N.Y.3d 464, 467, 775 N.Y.S.2d 224, 807 N.E.2d 273;  People v. Hafeez, 100 N.Y.2d 253, 258-259, 762 N.Y.S.2d 572, 792 N.E.2d 1060;  People v. Bennett, 13 A.D.3d 384, 385, 785 N.Y.S.2d 526), failed to preserve with sufficient specificity the issue now raised on appeal (see CPL 470.05[2];  People v. Parker, 7 N.Y.3d 907, 827 N.Y.S.2d 679, 860 N.E.2d 980;  People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Johnson, 22 A.D.3d 601, 801 N.Y.S.2d 755;  People v. Gutierrez, 15 A.D.3d 502, 790 N.Y.S.2d 493).   We decline to reach the depraved indifference issue in the exercise of our interest of justice jurisdiction (see CPL 470.15[3][c], [6][a];  People v. Parker, supra, affg. 29 A.D.3d 1161, 814 N.Y.S.2d 818).

Upon the exercise of our factual review power (see CPL 470.15[5] ), we are “constrained to weigh the evidence in light of the elements of the crime as charged without objection by [the] defendant” (People v. Cooper, 88 N.Y.2d 1056, 1058, 651 N.Y.S.2d 7, 673 N.E.2d 1234, quoting People v. Noble, 86 N.Y.2d 814, 815, 633 N.Y.S.2d 469, 657 N.E.2d 490;  see People v. Parker, supra at 1162 n. 2, 814 N.Y.S.2d 818).   Having done so, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).   Furthermore, the defendant's trial counsel provided meaningful representation at all stages of the proceedings (see People v. Benevento, 91 N.Y.2d 708, 674 N.Y.S.2d 629, 697 N.E.2d 584;  People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400;  see also People v. Fair, 308 A.D.2d 597, 598, 765 N.Y.S.2d 514).

The defendant's remaining contentions regarding a communication at the court's directive, between a court attorney and a juror concerning the juror's ability to continue to serve, are without merit.