PEOPLE v. NIKC (2008)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Goldberg, J.), rendered January 31, 2001, convicting him of murder in the second degree, assault in the first degree (three counts), criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree, and reckless endangerment in the first degree, after a nonjury trial, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the evidence was legally insufficient to convict him of depraved indifference murder is not preserved for appellate review (see CPL 470.05[2];  People v. Finger, 95 N.Y.2d 894, 895, 716 N.Y.S.2d 34, 739 N.E.2d 290;  People v. Solis, 43 A.D.3d 1190, 1191, 842 N.Y.S.2d 83). 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 the evidence adduced at trial was legally sufficient to prove beyond a reasonable doubt that the defendant acted with the culpable mental state of depraved indifference.   Shooting into a crowd is the quintessential example of a depraved indifference to human life (see People v. Feingold, 7 N.Y.3d 288, 293, 819 N.Y.S.2d 691, 852 N.E.2d 1163;  People v. Payne, 3 N.Y.3d 266, 272, 786 N.Y.S.2d 116, 819 N.E.2d 634;  People v. Riddick, 34 A.D.3d 923, 925, 823 N.Y.S.2d 594).   Moreover, resolution of issues of credibility is primarily a matter to be determined by the finder of fact, which saw and heard the witnesses, and its determination should be accorded great deference on appeal (see People v. Romero, 7 N.Y.3d 633, 644-645, 826 N.Y.S.2d 163, 859 N.E.2d 902;  People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053, cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828).   Upon the exercise of our factual review power (see CPL 470.15[5] ), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

The defendant's contention that he was denied the effective assistance of counsel rests on matter partially dehors the record and to that extent may not be reviewed on direct appeal (see People v. Granby, 50 A.D.3d 920, 854 N.Y.S.2d 675).   To the extent that the claim is based upon the record, it is without merit (see People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400;  People v. Granby, 50 A.D.3d 920, 854 N.Y.S.2d 675).

The defendant's remaining contentions are without merit.