PEOPLE v. BENJAMIN (2000)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Hanophy, J.), rendered September 12, 1995, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.   The People adduced evidence from which the jury could conclude that the defendant, a doctor, caused the fatal wound while terminating the victim's pregnancy.   According to the medical testimony, the three- to four-inch long by one-inch wide laceration occurred during the evacuation process, because the victim's cervical opening was not sufficiently dilated to accommodate the extracted material, thus causing a grave risk of hemorrhaging.   Furthermore, eyewitnesses testified that while in the recovery room, the victim, who had been anesthetized and sedated, bled profusely over a one- to two-hour period, during which time the defendant failed to adequately monitor her.   Accordingly, the jury's determination that the defendant consciously disregarded a grave and very substantial risk of death under circumstances evincing a depraved indifference to human life is supported by the evidence (see, Penal Law § 125.25[2];  People v. Register, 60 N.Y.2d 270, 274, 469 N.Y.S.2d 599, 457 N.E.2d 704;  People v. Ficaro, 233 A.D.2d 460, 650 N.Y.S.2d 757;  People v. Best, 202 A.D.2d 1015, 609 N.Y.S.2d 478, affd. 85 N.Y.2d 826, 624 N.Y.S.2d 363, 648 N.E.2d 782;  People v. White, 191 A.D.2d 604, 595 N.Y.S.2d 70).   Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15[5] ).

The sentence was not excessive (see, People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

The defendant's remaining contentions, including those raised in his supplemental pro se brief, are either unpreserved for appellate review or without merit.

MEMORANDUM BY THE COURT.