| People v Jean-Baptiste |
| 2007 NY Slip Op 07721 [44 AD3d 792] |
| October 9, 2007 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JeanYves Jean-Baptiste, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Ruth E. Ross ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Tomei, J.),rendered May 6, 2003, convicting him of murder in the second degree, upon a jury verdict, andimposing sentence.
Ordered that the judgment is modified, on the law, by reducing the defendant's conviction ofmurder in the second degree to manslaughter in the second degree, and vacating the sentenceimposed thereon; as so modified, the judgment is affirmed, and the matter is remitted to theSupreme Court, Kings County, for sentencing on the conviction of manslaughter in the seconddegree.
Under the circumstances of this case, the defendant's conviction of depraved indifferencemurder (see Penal Law § 125.25 [2]) cannot stand because the evidence failed toestablish the depravity and indifference to human life required for the commission of the crime(see People v Feingold, 7 NY3d288, 296 [2006]; People vMcMillon, 31 AD3d 136, 142 [2006]). Contrary to the People's contention, thedefendant's actions did not rise to the level of depraved indifference simply because others werepresent within the zone of danger.
Although insufficient to support the depraved indifference murder charge, the evidence waslegally sufficient to establish the lesser-included offense of manslaughter in the second degree(Penal Law § 125.15 [1]), and the judgment should be modified accordingly (seeCPL [*2]470.15 [2] [a]; 470.20 [4]; People v McMillon, 31 AD3d 136[2006]).
The defendant's contention that his sentence was excessive has been rendered academic. Thedefendant's remaining contentions are unpreserved for appellate review. Crane, J.P., Florio,Lifson and Carni, JJ., concur.