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

977
KA 10-00399
PRESENT: FAHEY, J.P., PERADOTTO, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ALAN L. JONES, DEFENDANT-APPELLANT.


D.J. & J.A. CIRANDO, ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR
DEFENDANT-APPELLANT.

GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO, FOR RESPONDENT.


     Appeal from a judgment of the Oswego County Court (Walter W.
Hafner, Jr., J.), rendered November 16, 2009. The judgment convicted
defendant, upon a jury verdict, of murder in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified 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 and as modified
the judgment is affirmed, and the matter is remitted to Oswego 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 murder in the second degree (Penal Law § 125.25 [2]
[depraved indifference murder]), defendant contends, inter alia, that
the evidence is legally insufficient to support the conviction. We
agree.

     Turning first to defendant’s legal sufficiency contention, we
conclude that, contrary to the People’s assertion, this issue is
preserved for our review because the Trial Judge “plainly was aware
of, and expressly decided, the question raised on appeal” concerning
whether the evidence is legally sufficient to support the conviction
(People v Eduardo, 11 NY3d 484, 493; see CPL 470.05 [2]; People v
Prado, 4 NY3d 725, 726, rearg denied 4 NY3d 795). With regard to the
merits, Penal Law § 125.25 (2) provides that “[a] person is guilty of
murder in the second degree when[,] . . . [u]nder circumstances
evincing a depraved indifference to human life, he [or she] recklessly
engages in conduct which creates a grave risk of death to another
person, and thereby causes the death of another person.” That crime
“ ‘is best understood as an utter disregard for the value of human
life—a willingness to act not because one intends harm, but because
one simply doesn’t care whether grievous harm results or not’ ”
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                                                         KA 10-00399

(People v Feingold, 7 NY3d 288, 296). “The culpable mental state,
contrasting it from the intent to take one’s life, is such that one is
‘recklessly indifferent, depravedly so, to whether’ the injury to or
death of another occurs” (People v Bussey, 19 NY3d 231, 236, quoting
People v Gonzalez, 1 NY3d 464, 468).

     It is well settled “ ‘that, except in rare and extraordinary
circumstances, . . . one person’s attack on another, no matter how
violent or how great the risk of harm it creates, does not rise to the
level of depravity and indifference to life contemplated by the
statutes defining crimes committed under circumstances evincing a
depraved indifference to human life’ ” (People v Boutin, 81 AD3d 1399,
1400, lv denied 17 NY3d 792; see People v Taylor, 15 NY3d 518, 522;
People v Suarez, 6 NY3d 202, 210-211). Indeed, “where a defendant’s
conduct endangers only a single person, to sustain a charge of
depraved indifference there must be proof of ‘wanton cruelty,
brutality or callousness directed against a particularly vulnerable
victim, combined with utter indifference to the life or safety of the
helpless target of the perpetrator’s inexcusable acts’ ” (People v
Coon, 34 AD3d 869, 870, quoting Suarez, 6 NY3d at 213; see Boutin, 81
AD3d at 1400). The Court of Appeals has explained that there are two
recurring “fact patterns in which a one-on-one killing could result in
a depraved indifference conviction” (Taylor, 15 NY3d at 522). “The
first is ‘when the defendant intends neither to seriously injure, nor
to kill, but nevertheless abandons a helpless and vulnerable victim in
circumstances where the victim is highly likely to die’ ” (id.,
quoting Suarez, 6 NY3d at 212). “The second is when the
‘defendant—acting with a conscious objective not to kill but to
harm—engages in torture or a brutal, prolonged and ultimately fatal
course of conduct against a particularly vulnerable victim’ ” (id. at
523, quoting Suarez, 6 NY3d at 212).

     The facts of this case do not fit within either of the
aforementioned fact patterns. The first fact pattern is inapposite
here inasmuch as the evidence at trial established that defendant did
not abandon the victim and, instead, demonstrated that defendant
called 911 regarding the victim’s asphyxiation, administered CPR and
was present at the scene when the authorities arrived. The second
fact pattern is likewise inapposite to this case inasmuch as the
evidence did not establish that defendant “engage[d] in torture or a
brutal, prolonged and ultimately fatal course of conduct against a
particularly vulnerable victim” (id. [internal quotation marks
omitted]). Indeed, a treating emergency medical technician (EMT)
testified that he conducted a “head to toe” examination of the victim,
but found no injuries of note other than marks to her neck. Another
EMT and a flight paramedic each testified that they did not see any
injuries other than the marks on the victim’s neck. Moreover,
although the Medical Examiner testified that she noticed bruising on
the victim’s left forearm, left knee and left leg, she opined that
those injuries “occurred at or about the time [the victim] was found
unresponsive” and further testified that the victim could not have
been strangled for a period of more than five minutes. Based on the
above, we conclude that the conviction of depraved indifference murder
is not supported by legally sufficient evidence (see id.; see also
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                                                         KA 10-00399

Bussey, 19 NY3d at 236; see generally People v Bleakley, 69 NY2d 490,
495).

     We now turn to the issue of the remedy. Here, the jury convicted
defendant of depraved indifference murder, and as stated above one is
guilty of that crime when, “[u]nder circumstances evincing a depraved
indifference to human life, he recklessly engages in conduct which
creates a grave risk of death to another person, and thereby causes
the death of another person” (Penal Law § 125.25 [2]). In convicting
defendant, the jury concluded that defendant acted recklessly in
causing the victim’s death, i.e., that he was “aware of and
consciously disregard[ed] a substantial and unjustifiable risk that
[death would] occur” (§ 15.05 [3]). Recklessness is also an element
of manslaughter in the second degree (see § 125.15 [1]). Thus,
because the evidence supports the conclusion that “defendant’s
actions, although not depraved, were reckless” (People v Atkinson, 7
NY3d 765, 767), “reducing the depraved indifference murder conviction
to manslaughter in the second degree is appropriate” (Bussey, 19 NY3d
at 236; see Atkinson, 7 NY3d at 766-767; People v Little, 83 AD3d
1389, 1392; see also CPL 470.15 [2] [a]). We therefore modify the
judgment accordingly.

     Defendant’s further contention that the verdict is against the
weight of the evidence lacks merit. Preliminarily, we note that,
given our determination that the evidence is legally insufficient to
support the depraved indifference murder conviction, defendant’s
contention with regard to that conviction is moot. However, viewing
the evidence in light of the elements of the lesser included offense
of manslaughter in the second degree (see People v Danielson, 9 NY3d
342, 349), we conclude that a verdict convicting defendant of that
crime would not be against the weight of the evidence (see generally
People v Pallagi, 91 AD3d 1266, 1270; People v Lettley, 64 AD3d 901,
903, lv denied 13 NY3d 836; see generally People v Bleakley, 69 NY2d
490, 495). “Generally, [w]e accord great deference to the resolution
of credibility issues by the trier of fact because those who see and
hear the witnesses can assess their credibility and reliability in a
manner that is far superior to that of reviewing judges who must rely
on the printed record” (People v Vanlare, 77 AD3d 1313, 1315, lv
denied 15 NY3d 956 [internal quotation marks omitted]; see People v
Curry, 82 AD3d 1650, 1651, lv denied 17 NY3d 805). Under these
circumstances, we see no reason to disturb the jury’s credibility
determinations.

     Additionally, we reject defendant’s contention that he was denied
a fair trial by the cumulative effect of alleged errors at trial,
i.e., courtroom outbursts and various actions of County Court, defense
counsel and the prosecutor. Defendant’s contention that the court
abused its discretion by inadequately addressing four outbursts by
spectators is unpreserved for our review (see CPL 470.05 [2]), and in
any event lacks merit (see People v Pantoliano, 127 AD2d 857, 857, lv
denied 70 NY2d 715; People v Manners, 120 AD2d 680, 680). The further
contention of defendant that the court should have granted his motion
for recusal is unpreserved for our review inasmuch as defendant did
not raise before the motion court the ground for recusal that he
                                 -4-                           977
                                                         KA 10-00399

asserts on appeal (see CPL 470.05 [2]; People v Strohman, 66 AD3d
1334, 1335-1336, lv dismissed 13 NY3d 911), and we decline to exercise
our power to review that contention as a matter of discretion in the
interest of justice (see CPL 470.15 [6] [a]). Defendant failed to
preserve for our review his challenge to the jury instructions (see
CPL 470.05 [2]), and in any event that contention lacks merit inasmuch
as “ ‘the jury, hearing the whole charge, would gather from its
language the correct rules [that] should be applied in arriving at [a]
decision’ ” (People v Ladd, 89 NY2d 893, 895, quoting People v
Russell, 266 NY 147, 153; see People v Bartlett, 89 AD3d 1453, 1454,
lv denied 18 NY3d 881). Viewing the evidence, the law and the
circumstances of this case, in totality and as of the time of the
representation, we reject defendant’s further contention that he was
denied effective assistance of counsel (see generally People v Baldi,
54 NY2d 137, 147). We also conclude that any alleged prosecutorial
misconduct has not “caused . . . substantial prejudice to the
defendant” (People v Rubin, 101 AD2d 71, 77, lv denied 63 NY2d 711).

     Finally, we reject the contention of defendant that the judgment
should be reversed because of the improper conduct of the jury.
Defendant’s contentions that the jury was confused with respect to the
court’s instructions regarding depraved indifference murder, that
certain jurors considered evidence not introduced at trial, and that
one juror was “browbeaten” into his verdict are properly before us
(see People v Gibian, 76 AD3d 583, 587, lv denied 15 NY3d 920), but
they lack merit inasmuch as “ ‘a jury verdict [generally] may not be
impeached by probes into the jury’s deliberative process’ ” (People v
Jerge, 90 AD3d 1486, 1486, quoting People v Maragh, 94 NY2d 569, 573).
A verdict, however, may be impeached by a showing of improper
influence (see id.). Nevertheless, defendant’s further contention
that the jury was improperly swayed by outside influences is not
properly before us inasmuch as defendant did not move to set aside the
verdict based on that alleged jury misconduct (see People v Bautista,
25 AD3d 341, 341, lv denied 6 NY3d 809). In any event, defendant’s
complaints of alleged outside influence are unsupported by the record.




Entered:   November 9, 2012                     Frances E. Cafarell
                                                Clerk of the Court
