PEOPLE v. REED

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Desmond REED, Defendant-Appellant.

Decided: April 28, 2006

PRESENT:  PIGOTT, JR., P.J., HURLBUTT, GORSKI, MARTOCHE, AND HAYES, JJ. The Legal Aid Bureau of Buffalo, Inc., Buffalo (Mary Good of Counsel), for Defendant-Appellant. Frank J. Clark, District Attorney, Buffalo (Tina M. Stanford of Counsel), for Plaintiff-Respondent.

Defendant appeals from a judgment convicting him of one count each of murder in the second degree (Penal Law § 125.25[2] [depraved indifference] ) and assault in the second degree (§ 120.05[2] ), and two counts of criminal possession of a weapon in the third degree (§ 265.02[1] ).   Contrary to the contention of defendant, Supreme Court properly refused to suppress statements that he made to the police (see generally People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380).   Also contrary to defendant's contention, the court did not abuse its discretion in admitting the autopsy photograph of the victim in evidence (see generally People v. Pobliner, 32 N.Y.2d 356, 369-370, 345 N.Y.S.2d 482, 298 N.E.2d 637, rearg. denied 33 N.Y.2d 657, 348 N.Y.S.2d 1030, 303 N.E.2d 710, cert. denied 416 U.S. 905, 94 S.Ct. 1609, 40 L.Ed.2d 110).   Defendant failed to preserve for our review his contention that the court erred in admitting the portrait photograph of the victim in evidence (see CPL 470.05[2] ), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).   The sentence is not unduly harsh or severe.

Defendant further contends, however, and the People correctly concede, that the conviction of depraved indifference murder is not supported by legally sufficient evidence (see generally People v. Suarez, 6 N.Y.3d 202, 207-215, 811 N.Y.S.2d 267, 844 N.E.2d 721;  People v. Payne, 3 N.Y.3d 266, 270-273, 786 N.Y.S.2d 116, 819 N.E.2d 634).   We therefore modify the judgment by reducing the conviction of murder in the second degree under the second count of the indictment to manslaughter in the second degree (Penal Law § 125.15 [1] ) and vacating the sentence imposed on that count (see CPL 470.15[2] [a] ), and we remit the matter to Supreme Court for sentencing on that conviction (see CPL 470.20[4] ).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified on the law by reducing the conviction of murder in the second degree (Penal Law § 125.25[2] ) under the second count of the indictment to manslaughter in the second degree (§ 125.15[1] ) and vacating the sentence imposed on that count and as modified the judgment is affirmed, and the matter is remitted to Supreme Court, Erie County, for sentencing on that conviction.

MEMORANDUM: