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

81
KA 10-01020
PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                                MEMORANDUM AND ORDER

JAMES BOUTIN, DEFENDANT-APPELLANT.


BRUCE R. BRYAN, SYRACUSE, FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (ROBERT E. MORAN
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Anthony F.
Aloi, J.), rendered May 10, 2010. The judgment convicted defendant,
upon a jury verdict, of assault in the first degree and reckless
endangerment in the first degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by reducing the conviction of assault
in the first degree (Penal Law § 120.10 [3]) to assault in the third
degree (§ 120.00 [2]), reducing the conviction of reckless
endangerment in the first degree to reckless endangerment in the
second degree and vacating the sentence, and as modified the judgment
is affirmed, and the matter is remitted to Onondaga County Court for
sentencing.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of assault in the first degree (Penal Law § 120.10
[3]) and reckless endangerment in the first degree (§ 120.25), both of
which require a showing that they were committed under circumstances
“evincing a depraved indifference to human life” (§ 120.10 [3]; §
120.25). We agree with defendant that the evidence is legally
insufficient to establish that he acted with depraved indifference
(see generally People v Bleakley, 69 NY2d 490, 495). The evidence at
trial established that the incident in question occurred outside a bar
just after it had closed. The intoxicated victim had been carried out
of the bar by bouncers, where he was left lying on the ground.
Defendant, a patron at the bar, lifted the victim up to his feet and,
according to witnesses, “kneed” the victim in the face, causing him to
fall backwards and strike his head on the ground. The resulting
injuries included facial fractures and a closed head injury that
required emergency surgery. “ ‘The Court of Appeals has taught that,
except in rare and extraordinary circumstances, not present here, 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
                                 -2-                            81
                                                         KA 10-01020

indifference to life contemplated by the statutes defining crimes
committed under circumstances evincing a depraved indifference to
human life’ ” (People v Pomie, 55 AD3d 630, 632, lv denied 11 NY3d
899; see People v Russell, 34 AD3d 850, 851, lv denied 8 NY3d 884).
“[W]here 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 People v
Suarez, 6 NY3d 202, 213). Although defendant’s conduct was
reprehensible, “there is no valid line of reasoning that could support
[the] jury’s conclusion that defendant possessed the mental
culpability required for depraved indifference [assault or reckless
endangerment]” (People v Smothers, 41 AD3d 1271, 1272, lv denied 9
NY3d 964 [internal quotation marks omitted]).

     We conclude, however, that the evidence is legally sufficient to
support the lesser included offenses of assault in the third degree
(Penal Law § 120.00 [2]) and reckless endangerment in the second
degree (§ 120.20), inasmuch as the evidence established that defendant
recklessly caused injury to the victim. We therefore modify the
judgment by reducing the conviction of assault in the first degree to
assault in the third degree, reducing the conviction of reckless
endangerment in the first degree to reckless endangerment in the
second degree and vacating the sentence (see CPL 470.15 [2] [a]), and
we remit the matter to County Court for sentencing. We have reviewed
defendant’s remaining contentions and conclude that they are without
merit.




Entered:   February 18, 2011                    Patricia L. Morgan
                                                Clerk of the Court
