PEOPLE v. JEAN BAPTISTE (2007)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Tomei, J.), rendered May 6, 2003, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is modified, on the law, 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, Kings County, for sentencing on the conviction of manslaughter in the second degree.

 Under the circumstances of this case, the defendant's conviction of depraved indifference murder (see Penal Law § 125.25[2] ) cannot stand because the evidence failed to establish the depravity and indifference to human life required for the commission of the crime (see People v. Feingold, 7 N.Y.3d 288, 296, 819 N.Y.S.2d 691, 852 N.E.2d 1163;  People v. McMillon, 31 A.D.3d 136, 142, 816 N.Y.S.2d 167).   Contrary to the People's contention, the defendant's actions did not rise to the level of depraved indifference simply because others were present within the zone of danger.

 Although insufficient to support the depraved indifference murder charge, the evidence was legally sufficient to establish the lesser-included offense of manslaughter in the second degree (Penal Law § 125.15[1] ), and the judgment should be modified accordingly (see CPL 470.15[2][a];  470.20 [4];  People v. McMillon, 31 A.D.3d 136, 816 N.Y.S.2d 167).

The defendant's contention that his sentence was excessive has been rendered academic.   The defendant's remaining contentions are unpreserved for appellate review.