PEOPLE v. WALKER (1999)

Appeal by the defendant from a judgment of the County Court, Suffolk County (Cacciabaudo, J.), rendered October 1, 1997, convicting him of grand larceny in the fourth degree, reckless endangerment in the first degree (three counts), criminal possession of stolen property in the fourth degree, and resisting arrest, 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 beyond a reasonable doubt that the defendant demonstrated a depraved indifference to human life and created a grave risk of death to others by driving a stolen car at speeds as high as 80 to 100 miles per hour, in excess of the posted speed limit, towards oncoming traffic, and through a stop sign and numerous red lights (see, Penal Law § 120.25;  People v. Cordero, 177 A.D.2d 499, 576 N.Y.S.2d 34;  People v. Ruiz, 159 A.D.2d 656, 553 N.Y.S.2d 173).   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] ).

 Under the circumstances, the trial court's refusal to submit the lesser-included offense of reckless endangerment in the second degree was proper inasmuch as there was no evidentiary basis upon which the defendant could have been acquitted of reckless endangerment in the first degree yet convicted of the lesser crime of reckless endangerment in the second degree (see, CPL 300.50[1];  People v. Glover, 57 N.Y.2d 61, 453 N.Y.S.2d 660, 439 N.E.2d 376;   People v. Flores, 113 A.D.2d 899, 493 N.Y.S.2d 616).

The defendant's remaining contentions are without merit.

MEMORANDUM BY THE COURT.