| People v Zephirin |
| 2008 NY Slip Op 00124 [47 AD3d 649] |
| January 8, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JackyZephirin, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Seth M.Lieberman of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Collini, J.),rendered October 14, 2004, convicting him of reckless endangerment in the first degree, upon ajury verdict, and imposing sentence.
Ordered that the judgment is modified, on the law, by reducing the defendant's conviction ofreckless endangerment in the first degree to reckless endangerment in the second degree, andvacating the sentence imposed thereon; as so modified, the judgment is affirmed, and the matteris remitted to the Supreme Court, Kings County, for sentencing on the conviction of recklessendangerment in the second degree.
"A person is guilty of reckless endangerment in the first degree when, under circumstancesevincing a depraved indifference to human life, he or she recklessly engages in conduct whichcreates a grave risk of death to another person" (Penal Law § 120.25; see People v Persaud, 25 AD3d626 [2006]).
The defendant contends that the evidence supporting his conviction of reckless endangermentin the first degree was legally insufficient to establish the element of depraved indifference. Attrial, he never argued, or requested that the Supreme Court instruct the jury, that depravedindifference was a culpable mental state (see People v Feingold, 7 NY3d 288, 291[2006]). Thus, we find thatthe defendant's legal sufficiency claim in this regard is unpreserved for appellate review(see CPL 470.05 [2]), and we decline to review that claim in the exercise of our interestof justice [*2]jurisdiction (see CPL 470.15 [6] [a]).Nevertheless, the defendant preserved for appellate review the contention that the objectivecircumstances did not establish depraved indifference (see People v Register, 60 NY2d270, 276-277 [1983], cert denied 466 US 953 [1984]). Viewing the evidence in the lightmost favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we findthat the evidence adduced at trial was legally insufficient to prove that the objectivecircumstances established depraved indifference to human life.
However, the evidence, when viewed in the light most favorable to the prosecution, waslegally sufficient to support a conviction of reckless endangerment in the second degree (seePenal Law § 120.20). Accordingly, we modify the judgment by reducing theconviction from reckless endangerment in the first degree to reckless endangerment in the seconddegree (see CPL 470.15 [2] [a]) and remit the matter to the Supreme Court, KingsCounty, for sentencing on that conviction (see CPL 470.20 [4]). The defendant'sremaining claim concerning the weight of the evidence is without merit (see People v Danielson, 9 NY3d342, 348-349 [2007]; People vTorres, 34 AD3d 704, 705 [2006]).
The defendant's remaining contention is unpreserved for appellate review and we decline toreach it in the exercise of our interest of justice jurisdiction. Crane, J.P., Rivera, Florio andBalkin, JJ., concur.