PEOPLE v. LANIER

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Cordell LANIER, Defendant-Appellant.

Decided: September 29, 2000

PRESENT:  PIGOTT, JR., P.J., PINE, HURLBUTT, SCUDDER and KEHOE, JJ. Stephen J. Bird, Rochester, for defendant-appellant. Robert Mastrocola, Rochester, for plaintiff-respondent.

 According great deference to the jury's determination after viewing the witnesses, we conclude that the verdict rejecting defendant's justification defense is not against the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672;  People v. Hutzler, 270 A.D.2d 934, 706 N.Y.S.2d 807, lv. denied 94 N.Y.2d 948, 710 N.Y.S.2d 5, 731 N.E.2d 622).   We further conclude that the conviction of murder in the second degree (Penal Law § 125.25[2] [depraved indifference murder] ) is supported by legally sufficient evidence (see, People v. Bleakley, supra, at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   The evidence establishes that defendant pulled a gun from his waistband during an altercation with the unarmed victim and maintained possession and control of the gun during their ensuing struggle.   Several shots were fired during the struggle, two of which struck the victim.   Thus, there is a valid line of reasoning and permissible inferences that could lead a rational person to conclude that, although defendant did not have the conscious objective of causing death, he pulled the trigger recklessly and under circumstances evincing a depraved indifference to human life.   Nor is the verdict against the weight of the evidence (see, People v. Bleakley, supra, at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672;  see generally, People v. Rosario, 208 A.D.2d 961, 962, 617 N.Y.S.2d 887, lv. denied 85 N.Y.2d 913, 627 N.Y.S.2d 336, 650 N.E.2d 1338;  People v. Marsh, 140 A.D.2d 631, 529 N.Y.S.2d 6, lv. denied 72 N.Y.2d 1047, 534 N.Y.S.2d 946, 531 N.E.2d 666;  People v. Languena, 129 A.D.2d 587, 514 N.Y.S.2d 83, lv. denied 70 N.Y.2d 649, 518 N.Y.S.2d 1042, 512 N.E.2d 568).

Judgment unanimously affirmed.

MEMORANDUM: