        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

220
KA 03-02239
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, GREEN, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

EMMANUEL D. LITTLE, DEFENDANT-APPELLANT.


KRISTIN F. SPLAIN, CONFLICT DEFENDER, ROCHESTER (KELLEY PROVO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Richard A.
Keenan, J.), rendered July 25, 2003. The judgment convicted
defendant, upon a jury verdict, of murder in the second degree,
criminal possession of a weapon in the second degree and criminal
possession of a weapon in the third degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified as a matter of discretion in the interest of
justice and on the law by reducing the conviction of murder in the
second degree (Penal Law § 125.25 [2]) to manslaughter in the second
degree (§ 125.15 [1]) and vacating the sentence imposed on count two
of the indictment and as modified the judgment is affirmed, and the
matter is remitted to Monroe County Court for sentencing on the
conviction of manslaughter in the second degree.

     Memorandum: On appeal from a judgment convicting him upon a jury
verdict of, inter alia, murder in the second degree (Penal Law §
125.25 [2] [depraved indifference murder]), defendant contends that
the evidence is legally insufficient to support the conviction. It is
undisputed that defendant killed the victim by firing a single shot at
close range on a street in the City of Rochester shortly before
midnight. There were no witnesses to the shooting. In confessing to
the police that he killed the victim and in his testimony at trial,
defendant asserted that he acted in self-defense after the victim, a
person previously unknown to him but from whom he had attempted to
purchase marihuana, threatened to kill him. A prosecution witness
testified, however, that defendant informed him following the murder
that he had killed the victim while attempting to take a necklace from
him. Regardless of defendant’s motive, there was no evidence that
anyone other than the victim was endangered. Although defendant was
indicted for both intentional and depraved indifference murder,
defense counsel moved for a trial order of dismissal at the close of
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                                                         KA 03-02239

the People’s proof with respect to the depraved indifference murder
count, contending that the evidence was legally insufficient to
support that charge because “the only evidence adduced in the case is
that there was one shot, fired directly at the deceased.” The basis
for defense counsel’s motion is supported by the line of cases,
beginning with People v Hafeez (100 NY2d 253) and culminating in
People v Suarez (6 NY3d 202, 208) and People v Feingold (7 NY3d 288).
As the Court of Appeals stated in People v Payne (3 NY3d 266, 272,
rearg denied 3 NY3d 767), “a one-on-one shooting . . . can almost
never qualify as depraved indifference murder.” Notably, Hafeez was
decided by the Court of Appeals on the very day that the presentation
of evidence in defendant’s trial began.

     We initially conclude that, if defendant had not submitted proof
at trial, defense counsel’s motion for a trial order of dismissal at
the close of the People’s proof would have been sufficient to preserve
for our review defendant’s contention that the evidence was legally
insufficient to support the depraved indifference murder count (cf.
People v Hines, 97 NY2d 56, 61, rearg denied 97 NY2d 678). Defense
counsel’s motion essentially “anticipat[ed] the change in the law
brought by” the Hafeez/Suarez/Feingold line of cases (People v Jean-
Baptiste, 11 NY3d 539, 544). We reject the People’s contention that
the motion would not have been sufficient to preserve for our review a
contention that the evidence was legally insufficient under Feingold
(7 NY3d at 294), in which the Court of Appeals made it clear that
“depraved indifference to human life is a culpable mental state.” The
Court of Appeals has also expressly stated that “it is incorrect to
suggest that an argument under Suarez is fundamentally different from
one based on Feingold” (People v Taylor, 15 NY3d 518, 522). Thus,
where, as here, a motion for a trial order of dismissal would have
been sufficient to preserve for our review a contention that evidence
is legally insufficient to support a conviction of depraved
indifference murder under Suarez, it would also be sufficient to
preserve for our review a contention that it is legally insufficient
under Feingold as well (see Taylor, 15 NY3d at 522).

      As defendant correctly concedes, however, defendant’s challenge
to the legal sufficiency of the evidence with respect to the depraved
indifference murder count is unpreserved for our review because
defense counsel failed to renew his motion for a trial order of
dismissal after presenting evidence (see Hines, 97 NY2d at 61).
Nevertheless, under the circumstances of this case, we exercise our
power to address the unpreserved contention as a matter of discretion
in the interest of justice (see CPL 470.15 [3] [c]; [6] [a]).
Although we acknowledge that the People advance plausible reasons why
we should not do so, we cannot agree with the People’s reasoning
where, as here, a defendant is convicted of a crime that he plainly
did not commit (see generally People v DeCapua, 37 AD3d 1189, lv
denied 8 NY3d 893; People v Packer, 31 AD3d 1169, lv denied 7 NY3d
869).

     As set forth above, this was a classic one-on-one shooting
involving the potential of harm to only one individual, which the
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                                                         KA 03-02239

Court of Appeals made clear in Payne and Suarez would not support a
conviction of depraved indifference murder. While we agree with the
People that the jury could reasonably have concluded that defendant
acted recklessly rather than intentionally (cf. People v Rodriguez, 43
AD3d 1317, lv denied 9 NY3d 1038), the scenario presented herein does
not evince the additional mens rea of depraved indifference necessary
for a conviction under Penal Law § 125.25 (2) (see Feingold, 7 NY3d
294). Thus, there is legally insufficient evidence of depraved
indifference murder in this case under the law set forth by the Court
of Appeals in the line of cases from Hafeez through Feingold.

     The People contend that the evidence is legally sufficient to
support the conviction under the law in effect at the time of
defendant’s trial (see People v Register, 60 NY2d 270, cert denied 466
US 953), and that we must apply that law in assessing the legal
sufficiency of the evidence herein. Even assuming, arguendo, that the
definition of depraved indifference murder set forth in Register was
still the prevailing law at the time of defendant’s trial (cf. Hafeez,
100 NY2d at 259), we nevertheless reject the People’s contention. As
a general rule, a defendant “is entitled to the application of current
principles of substantive law upon his direct appeal from the judgment
of conviction” (People v Collins, 45 AD3d 1472, 1473, lv denied 10
NY3d 861, citing Policano v Herbert, 7 NY3d 588, 603-604). In People
v Jones (64 AD3d 1158, 1159, lv denied 13 NY3d 860), we applied that
general rule in a case involving the legal sufficiency of the evidence
of depraved indifference murder. The People contend that, by stating
in Jean-Baptiste (11 NY3d at 542) that Feingold “should apply to cases
brought on direct appeal in which the defendant has adequately
challenged the sufficiency of the proof as to his depraved
indifference murder conviction,” the Court of Appeals was implicitly
stating that Feingold applies only in such circumstances, i.e., where
the sufficiency of the proof was adequately challenged to preserve the
issue for review by an appellate court. We reject that contention.
We do not interpret that statement in Jean-Baptiste to mean that the
general rule concerning the law to be applied on direct appeals does
not apply in cases in which we review a defendant’s contention
concerning the legal sufficiency of the evidence as a matter of
discretion in the interest of justice.

     The review of the legal sufficiency of the evidence in Jean-
Baptiste was on the law, inasmuch as defendant’s challenge to the
legal sufficiency of the evidence was preserved for appellate review.
The Court’s statement in Jean-Baptiste (11 NY3d at 542) that the proof
had been “adequately challenged” was made in response to the People’s
contention that, under cases such as People v Dekle (56 NY2d 835), the
defendant had not objected to the jury charge and thus the legal
sufficiency of the evidence had to be assessed in terms of the charge,
which reflected the law in effect at the time of the defendant’s
trial. In rejecting the People’s contention, the Court in Jean-
Baptiste concluded that, in cases in which a defendant preserved the
legal sufficiency issue by a motion for a trial order of dismissal,
“defense counsel did not additionally have to take an exception to the
court’s depraved indifference murder charge” (id. at 544). We do not
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                                                         KA 03-02239

interpret the Court’s statement as applying to cases in which we
choose to exercise our authority to review an issue as a matter of
discretion in the interest of justice (see CPL 470.15 [6] [a]). In
the absence of an express directive from the Court of Appeals to the
contrary, we decline to adopt the sweeping new rule proposed by the
People and thereby to depart from our established practice. Indeed,
we note that, in Jones (64 AD3d at 1159), we implicitly rejected the
contention now raised by the People. Jones was decided after Jean-
Baptiste, yet we applied the current law of depraved indifference
murder on defendant’s appeal even though the issue had not been
preserved by a motion for a trial order of dismissal.

     While we conclude that the evidence is legally insufficient to
support the conviction of depraved indifference murder, we further
conclude that the evidence is legally sufficient to support the lesser
included offense of manslaughter in the second degree because the
evidence unequivocally establishes that defendant recklessly caused
the victim’s death (Penal Law § 125.15 [1]; see People v Bolling, 49
AD3d 1330). We therefore modify the judgment by reducing the
conviction of murder in the second degree to manslaughter in the
second degree (§ 125.15) and vacating the sentence imposed on count
two of the indictment (see CPL 470.15 [2] [a]), and we remit the
matter to County Court for sentencing on that conviction (see CPL
470.20 [4]).




Entered:   April 1, 2011                        Patricia L. Morgan
                                                Clerk of the Court
