PEOPLE v. SUMMERVILLE (2005)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Kreindler, J.), rendered May 20, 2003, convicting him of murder in the second degree, criminal possession of a weapon in the second degree, reckless endangerment in the first degree, and assault in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the People failed to establish by legally sufficient evidence that he acted with depraved indifference (see Penal Law § 125.25[2] ) is unpreserved for appellate review (see People v. Finger, 95 N.Y.2d 894, 895, 716 N.Y.S.2d 34, 739 N.E.2d 290;  People v. Johnson, 228 A.D.2d 521, 522, 643 N.Y.S.2d 1007).   In any event, 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 of depraved indifference murder beyond a reasonable doubt (see People v. Sanchez, 98 N.Y.2d 373, 748 N.Y.S.2d 312, 777 N.E.2d 204).   The evidence produced at trial that the defendant fired a gun on a public street in the direction of at least two individuals, and in close proximity to several others, was legally sufficient to establish that he acted with a “depraved indifference to human life” (People v. Robinson, 180 A.D.2d 767, 768, 580 N.Y.S.2d 80;  see People v. Millan, 155 A.D.2d 621, 622, 548 N.Y.S.2d 43).

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

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