PEOPLE v. TORRES (2006)

Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Molea, J.), rendered August 17, 2004, convicting him of murder in the second degree, and imposing sentence.

ORDERED that the judgment is modified, on the law and as a matter of discretion in the interest of justice, by reducing the defendant's conviction of murder in the second degree to manslaughter in the second degree and vacating the sentence imposed thereon;  as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Westchester County, for sentencing on the conviction of manslaughter in the second degree.

Following a jury trial the defendant was convicted of depraved indifference murder (Penal Law § 125.25[2] ).   We agree with the defendant's contention on appeal that the evidence was legally insufficient to establish that he acted with the depravity and indifference to human life required for a conviction of depraved indifference murder (see People v. Suarez, 6 N.Y.3d 202, 212-214, 811 N.Y.S.2d 267, 844 N.E.2d 721).   However, the evidence was legally sufficient to establish the lesser-included offense of manslaughter in the second degree (Penal Law § 125.15[1];  see People v. Rodriguez, 33 A.D.3d 730, 826 N.Y.S.2d 271, 2006 WL 2925320 [Oct. 10, 2006];  People v. McMillon, 31 A.D.3d 136, 142, 816 N.Y.S.2d 167, lv. denied 7 N.Y.3d 815, 822 N.Y.S.2d 490, 855 N.E.2d 806), a charge that the defendant had requested be submitted to the jury.   Accordingly, we modify the judgment by reducing the conviction from murder in the second degree to manslaughter in the second degree (see People v. Atkinson, 7 N.Y.3d 765, 819 N.Y.S.2d 858, 853 N.E.2d 227;  People v. McMillon, supra ) and remit the matter to the Supreme Court for sentencing on that conviction (see CPL 470.20[4] ).   The defendant's remaining claims concerning the weight of the evidence are without merit (see People v. Wells, 18 A.D.3d 482, 483, 794 N.Y.S.2d 125;  People v. Rose, 224 A.D.2d 643, 639 N.Y.S.2d 413).

Contrary to the defendant's contentions, he was neither placed in custody without probable cause (see People v. Ellerbe, 265 A.D.2d 569, 570, 697 N.Y.S.2d 643), nor subjected to a ruse that was so fundamentally unfair as to deny him due process (see People v. Miller, 268 A.D.2d 600, 702 N.Y.S.2d 851).   Moreover, the People did not impermissibly shift the burden of proof by eliciting testimony and making statements that it was difficult to recover forensic evidence from the crime scene (see People v. Justino, 26 A.D.3d 345, 810 N.Y.S.2d 205;  People v. Graham, 265 A.D.2d 424, 425, 697 N.Y.S.2d 74).   Finally, there is no merit to the defendant's claim that the jurors misunderstood the court's “total circumstantial charge” (People v. Sanchez, 61 N.Y.2d 1022, 1023, 475 N.Y.S.2d 376, 463 N.E.2d 1228), and that it erred in failing to issue a curative instruction because the jury is presumed to have followed the court's instruction (see People v. Hardy, 22 A.D.3d 679, 680, 804 N.Y.S.2d 344).