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

The PEOPLE, etc., Respondent, v. Kenneth H. PAYNE, Appellant.

Decided: October 14, 2003

FRED T. SANTUCCI, J.P., GABRIEL M. KRAUSMAN, ROBERT W. SCHMIDT and REINALDO E. RIVERA, JJ. Robert C. Mitchell, Riverhead, NY, (Robert B. Kenney of counsel), for appellant, and appellant pro se. Thomas J. Spota, District Attorney, Riverhead, NY, (Anne Oh of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Suffolk County (Mullin, J.), rendered June 27, 2000, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement officials.

ORDERED that the judgment is affirmed.

The suppression court properly found that the defendant's statements to law enforcement officials were not the result of custodial interrogation and were admissible at trial (see People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179;  People v. Davis, 224 A.D.2d 541, 637 N.Y.S.2d 977;  People v. Soto, 183 A.D.2d 926, 584 N.Y.S.2d 160).

 The trial court properly denied the defendant's request to instruct the jury on the defense of justification since the defendant went to the victim's house and, believing that the unarmed victim posed a threat to himself and members of his family, fired a single shot into his mid-section with a hunting rifle (see People v. Collice, 41 N.Y.2d 906, 394 N.Y.S.2d 615, 363 N.E.2d 340;  People v. Sutherland, 221 A.D.2d 388, 633 N.Y.S.2d 203;  People v. Perry, 210 A.D.2d 437, 620 N.Y.S.2d 127;  People v. Lee, 185 A.D.2d 824, 586 N.Y.S.2d 646).

 For a defendant to be convicted of depraved indifference murder, the evidence must show “recklessness plus aggravating circumstances” (People v. Register, 60 N.Y.2d 270, 278, 469 N.Y.S.2d 599, 457 N.E.2d 704, cert. denied 466 U.S. 953, 104 S.Ct. 2159, 80 L.Ed.2d 544).   Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt of depraved indifference murder beyond a reasonable doubt.   Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15[5];  People v. Dupont, 283 A.D.2d 587, 724 N.Y.S.2d 901;  People v. Rammelkamp, 167 A.D.2d 560, 562 N.Y.S.2d 231).

The defendant's remaining contentions are without merit.

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