| People v Maffei |
| 2018 NY Slip Op 07150 [165 AD3d 1173] |
| October 24, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Robert Maffei, Appellant. |
Paul Skip Laisure, New York, NY (David P. Greenberg of counsel), for appellant, andappellant pro se.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Ann Bordley ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Robert K.Holdman, J.), rendered May 21, 2008, convicting him of murder in the second degree, upon ajury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant shot and killed the victim, who was unknown to him, while the two wereriding as passengers in two separate vehicles traveling side-by-side on an entrance ramp to theBelt Parkway in Brooklyn. The evidence at trial established that the defendant was traveling as arear passenger in a Lincoln being driven by his girlfriend (hereinafter the driver). While theLincoln was stopped at a red light near Bay 8th Street in Brooklyn, a Subaru containing fouryoung men, including the victim, pulled up alongside the Lincoln and then turned right towardsthe entrance ramp for the parkway. The occupants of the Subaru may have looked at the driver,and smiled and waved as they drove past. The defendant told the driver to follow the Subaru, andthen to pull up alongside of it. The driver complied and turned right, also onto the entrance rampfor the parkway. The defendant rolled down the rear passenger window of the Lincoln and, oncethe vehicles were side-by-side, pointed a gun toward the rear window of the Subaru and fired.The Subaru was traveling approximately 40 miles per hour at the time and in the merging lanefor the parkway. The gun discharged a single bullet into the rear driver side window of theSubaru. The bullet missed the passenger seated in the rear driver side seat, but struck the victim,who was sitting in the rear passenger seat, killing him. The defendant was convicted following ajury trial of depraved indifference murder (see Penal Law § 125.25[2]).
The defendant's challenge to the legal sufficiency of the evidence supporting his conviction isunpreserved for appellate review (see CPL 470.05 [1]; People v Kolupa, 13 NY3d 786,787 [2009]; People v Hawkins, 11NY3d 484, 492 [2008]). In any event, we find that it was legally sufficient to establish thedefendant's guilt (see People vDanielson, 9 NY3d 342, 349 [2007]). A person is guilty of depraved indifferencemurder when, under circumstances evincing a depraved indifference to human life, he recklesslyengages in conduct which creates a grave risk of death to another person, and thereby causes thedeath of another person (see Penal Law § 125.25 [2]; People v Suarez, 6 NY3d 202, 208[2005]). "Depraved indifference murder differs from intentional murder in that it results not from[*2]a specific, conscious intent to cause death, but from anindifference to or disregard of the risks attending defendant's conduct" (People v Gonzalez, 1 NY3d 464,467 [2004]). Contrary to the defendant's contention, the evidence at trial, viewed in the light mostfavorable to the prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), establishedthat the defendant shot indiscriminately towards the rear passengers of the Subaru with depravedindifference to human life rather than with a specific intent to kill (see People v Gonzalez, 1 NY3d464 [2004]; People v Williams,150 AD3d 1273 [2017]; People vArchie, 118 AD3d 1292 [2014]). Moreover, in fulfilling our responsibility to conduct anindependent review of the weight of the evidence (see CPL 470.15 [5]; People vDanielson, 9 NY3d at 348-349), we are satisfied that the verdict of guilt was not against theweight of the evidence (see People vRomero, 7 NY3d 633 [2006]).
The defendant's claim that he was deprived of the constitutional right to the effectiveassistance of counsel is based, in part, on matter appearing on the record and, in part, on matteroutside the record, and thus constitutes a "mixed claim" of ineffective assistance (People v Maxwell, 89 AD3d 1108,1109 [2011]; see People v Evans, 16NY3d 571, 575 [2011]). In this case, it is not evident from the matter appearing on therecord that the defendant was deprived of the effective assistance of counsel (see People v Cruz, 127 AD3d 987,988 [2015]; People v Robles, 116AD3d 1071, 1071 [2014]). Since the defendant's claim of ineffective assistance cannot beresolved without reference to matter outside the record, a CPL 440.10 proceeding is theappropriate forum for reviewing the claim in its entirety (see People v Freeman, 93 AD3d 805, 806 [2012]; People vMaxwell, 89 AD3d at 1109; Peoplev Rohlehr, 87 AD3d 603, 604 [2011]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]).
The defendant's remaining contentions, raised in his pro se supplemental brief, areunpreserved for appellate review and, in any event, without merit. Leventhal, J.P., Cohen,LaSalle and Christopher, JJ., concur.