People v Summerville

2005 NYSlipOp 07721

October 17, 2005

Appellate Division, Second Department

The People of the State of New York, Respondent, v Darryl Summerville, Appellant.

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Appeal by the defendant from a judgment of the Supreme Court, Kings County (Kreindler, J.), rendered May 20, 2003, convicting him of murder in the second degree, criminal possession of a weapon in the second degree, reckless endangerment in the first degree, and assault in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant's contention that the People failed to establish by legally sufficient evidence that he acted with depraved indifference (see Penal Law § 125.25 [2]) is unpreserved for appellate review (see People v Finger, 95 NY2d 894, 895 [2000]; People v Johnson, 228 AD2d 521, 522 [1996]). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish the defendant's guilt of depraved indifference murder beyond a reasonable doubt (see People v Sanchez, 98 NY2d 373 [2002]). The evidence produced at trial that the defendant fired a gun on a public street in the direction of at least two individuals, and in close proximity to several others, was legally sufficient to establish that he acted with a "depraved indifference to human life" (People v Robinson, 180 AD2d 767, 768 [1992]; see People v Millan, 155 AD2d 621, 622 [1989]).

The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).[*2]

The defendant's remaining contentions, raised in his supplemental pro se brief, are either unpreserved for appellate review or without merit. S. Miller, J.P., Ritter, Rivera and Skelos, JJ., concur.