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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Kenneth L. BAKER, Defendant-Appellant.

Decided: September 30, 2005

PRESENT:  SCUDDER, J.P., KEHOE, SMITH, PINE, AND HAYES, JJ. Edward J. Nowak, Public Defender, Rochester (Timothy P. Donaher of Counsel), for Defendant-Appellant. Michael C. Green, District Attorney, Rochester (Michael J. Nolan of Counsel), for Plaintiff-Respondent.

Defendant appeals from a judgment convicting him, after a jury trial, of murder in the second degree (Penal Law § 125.25[2] [depraved indifference] ) and assault in the first degree (§ 120.10[1] ).   Defendant contends that the only reasonable view of the evidence is that he intentionally killed the victim, and he thus contends that the evidence is legally insufficient to support the conviction of depraved indifference murder.   Defendant failed to preserve his contention for our review (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919).   In any event, we conclude that defendant's contention lacks merit.   The record establishes that defendant approached the two victims and shot the first victim in the chest, which eventually caused the death of that victim, and defendant then shot the second victim.   The first victim ran after being shot, but defendant did not follow him.   Instead, defendant approached the second victim, stood over him, and continued to shoot him from inches away, pulling the trigger of his weapon while aiming it at the second victim even after there was no remaining ammunition.   We thus conclude that a rational jury could have had a reasonable doubt with respect to whether defendant's acts were “specifically designed to cause the death of the [first] victim” (People v. Gonzalez, 1 N.Y.3d 464, 467, 775 N.Y.S.2d 224, 807 N.E.2d 273;  see People v. Garbutt, 9 A.D.3d 255, 780 N.Y.S.2d 126, lv. denied 3 N.Y.3d 674, 784 N.Y.S.2d 12, 817 N.E.2d 830).

We further conclude that the verdict 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) and that defendant received meaningful representation (see People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).   Even assuming, arguendo, that Supreme Court erred in admitting Molineux evidence (see People v. Molineux, 168 N.Y. 264, 61 N.E. 286), we conclude that any such error is harmless. The evidence of guilt is overwhelming, and there is no significant probability that the jury would have acquitted defendant but for the alleged error (see People v. Hewett, 221 A.D.2d 369, 633 N.Y.S.2d 374, lv. denied 88 N.Y.2d 966, 647 N.Y.S.2d 720, 670 N.E.2d 1352;  see generally People v. Crimmins, 36 N.Y.2d 230, 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787).

Contrary to defendant's contention, the court's Allen charge, as a whole, was “neutral and balanced” (People v. Miller, 292 A.D.2d 165, 165, 738 N.Y.S.2d 204, lv. denied 98 N.Y.2d 678, 746 N.Y.S.2d 467, 774 N.E.2d 232) and was not coercive (see People v. Harrington, 262 A.D.2d 220, 694 N.Y.S.2d 354, lv. denied 94 N.Y.2d 823, 702 N.Y.S.2d 593, 724 N.E.2d 385;  People v. Gonzalez, 259 A.D.2d 631, 631-632, 687 N.Y.S.2d 170, lv. denied 93 N.Y.2d 970, 695 N.Y.S.2d 56, 716 N.E.2d 1101).   Finally, we conclude that the sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is affirmed.

I concur in the result reached by the majority with respect to defendant's challenge to the legal sufficiency of the evidence based on the failure of defendant to preserve for our review his contention that the evidence is legally insufficient to support the conviction of depraved indifference murder (Penal Law § 125.25[2];  see generally People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919).   I otherwise concur in the decision and reasoning of the majority with respect to defendant's remaining contentions.