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Supreme Court, Appellate Division, Fourth Department, New York.

The PEOPLE of the State of New York, Respondent, v. Edward R. RODRIGUEZ, also known as Edwardo Rolon Rodriguez, Defendant-Appellant.

Decided: September 28, 2007

PRESENT:  MARTOCHE, J.P., LUNN, PERADOTTO, AND GREEN, JJ. Edward J. Nowak, Public Defender, Rochester (William Clauss Of Counsel), for Defendant-Appellant. Michael C. Green, District Attorney, Rochester (Kelly Christine Wolford Of Counsel), for Respondent.

Defendant appeals from a judgment convicting him upon a jury verdict of murder in the second degree (Penal Law § 125.25[2] [depraved indifference murder] ).   Defendant admitted at trial that he killed the victim but contended that he did so in self-defense, and the jury acquitted him of intentional murder in the second degree (§ 125.25[1] ).   Defendant contends that there is no valid line of reasoning and permissible inferences that could have led the jury to conclude that his conduct was reckless rather than intentional, particularly in view of the number and severity of the wounds inflicted on the victim.   We agree (see People v. Hawthorne, 35 A.D.3d 499, 501-502, 826 N.Y.S.2d 147, lv. denied 8 N.Y.3d 946, 836 N.Y.S.2d 557, 868 N.E.2d 240;  People v. Breedlove, 26 A.D.3d 641, 642, 809 N.Y.S.2d 291, lv. denied 6 N.Y.3d 846, 816 N.Y.S.2d 752, 849 N.E.2d 975;  see also People v. Suarez, 6 N.Y.3d 202, 216, 811 N.Y.S.2d 267, 844 N.E.2d 721;  see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   The evidence at trial included forensic testimony establishing that defendant stabbed the victim eight times and that four stab wounds punctured her lungs and two struck her heart.   Indeed, as the Court of Appeals has noted, “depraved indifference murder may not be properly charged in the overwhelming majority of homicides that are prosecuted in New York” (People v. Payne, 3 N.Y.3d 266, 270, 786 N.Y.S.2d 116, 819 N.E.2d 634, rearg. denied 3 N.Y.3d 767, 788 N.Y.S.2d 670, 821 N.E.2d 975).   We thus conclude that the depraved indifference count of the indictment must be dismissed (see generally People v. McMillon, 31 A.D.3d 136, 139-141, 816 N.Y.S.2d 167, lv. denied 7 N.Y.3d 815, 822 N.Y.S.2d 490, 855 N.E.2d 806).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously reversed on the law, the indictment is dismissed and the matter is remitted to Monroe County Court for proceedings pursuant to CPL 470.45.