| People v Rodriguez |
| 2007 NY Slip Op 07123 [43 AD3d 1317] |
| September 28, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Edward R.Rodriguez, Also Known as Edwardo Rolon Rodriguez, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Kelly Christine Wolford of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Richard A. Keenan, J.), rendered June4, 2004. The judgment convicted defendant, upon a jury verdict, of murder in the second degree.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously reversed on the law, the indictment is dismissed and the matter is remitted toMonroe County Court for proceedings pursuant to CPL 470.45.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofmurder in the second degree (Penal Law § 125.25 [2] [depraved indifference murder]).Defendant admitted at trial that he killed the victim but contended that he did so in self-defense,and the jury acquitted him of intentional murder in the second degree (§ 125.25 [1]).Defendant contends that there is no valid line of reasoning and permissible inferences that couldhave led the jury to conclude that his conduct was reckless rather than intentional, particularly inview of the number and severity of the wounds inflicted on the victim. We agree (see People v Hawthorne, 35 AD3d499, 501-502 [2006], lv denied 8 NY3d 946 [2007]; People v Breedlove, 26 AD3d 641,642 [2006], lv denied 6 NY3d 846 [2006]; see also People v Suarez, 6 NY3d 202, 216 [2005]; seegenerally People v Bleakley, 69 NY2d 490, 495 [1987]). The evidence at trial includedforensic testimony establishing that defendant stabbed the victim eight times and that four stabwounds punctured her lungs and two struck her heart. Indeed, as the Court of Appeals has noted,"depraved indifference murder may not be properly charged in the overwhelming majority ofhomicides that are prosecuted in New York" (People v Payne, 3 NY3d 266, 270 [2004], rearg denied 3NY3d 767 [2004]). We thus conclude that the depraved indifference count of the indictmentmust be dismissed (see generally Peoplev McMillon, 31 AD3d 136, 139-141 [2006], lv denied 7 NY3d 815 [2006]).Present—Martoche, J.P., Lunn, Peradotto and Green, JJ.