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

The PEOPLE of the State of New York, Respondent, v. Michael WILLIAMS, Defendant-Appellant.

Decided: September 16, 2008

GONZALEZ, J.P., BUCKLEY, MOSKOWITZ, DeGRASSE, JJ. Robert S. Dean, Center for Appellate Litigation, New York (Carl S. Kaplan of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Peter D. Coddington of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Megan Tallmer, J.), rendered January 2, 2007, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 25 years to life, unanimously affirmed.

 The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348-349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ).   Defendant engaged in a pattern of physically abusing his five-week-old son, which culminated in an incident where he slammed his son onto his crib mattress five times with great force, and then held him in a choke hold.   These acts, which created a grave risk of serious physical injury or death to the child, evinced a depraved indifference to human life (see Penal Law § 125.25[4];  People v. Bowman, 48 A.D.3d 178, 847 N.Y.S.2d 536 [2007], lv. denied 10 N.Y.3d 808, 857 N.Y.S.2d 42, 886 N.E.2d 807 [2008] ).   Defendant's attempts to revive the child and obtain help may have shown a lack of homicidal intent, but they did not undermine the jury's finding that he acted with depraved indifference at the time he inflicted the fatal injuries.

 The court did not violate defendant's right to free exercise of his religion when it prohibited him from displaying his Bible in the presence of the jury, an act that would have posed the risk of evoking sympathy.   The compelling interest of guaranteeing a fair trial to both sides justified the court's incidental restriction on defendant's religious practices (see La Rocca v. Lane, 37 N.Y.2d 575, 582-584, 376 N.Y.S.2d 93, 338 N.E.2d 606 [1975], cert. denied 424 U.S. 968, 96 S.Ct. 1464, 47 L.Ed.2d 734 [1976];  People v. Bryant, 280 A.D.2d 403, 720 N.Y.S.2d 500 [2001], lv. denied 96 N.Y.2d 826, 729 N.Y.S.2d 446, 754 N.E.2d 206 [2001] ).