Opinion
May 23, 1988
Appeal from the Supreme Court, Kings County (Egitto, J.).
Ordered that the judgment is affirmed.
Viewing the evidence in light most favorable to the prosecution (see, People v Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt.
We reject the defendant's contention that the acquittal on the intentional murder charge indicated that the jury did not credit the testimony of the People's witness Simpson. The witness testified that he heard chairs fall down and glassware break during a loud argument between the defendant and the deceased, his wife, which lasted for about an hour. He further heard the deceased say "John, why you punch me in my face like that" and "John, no, don't", followed by a gunshot. After that, Simpson heard the defendant say "I don't believe I did this", and directed his daughter to call an ambulance. In addition, the defendant testified that he was angry with his wife for being away from home for several days, and demanded that she pack her things and leave the house. Their argument continued through various rooms of their home. When he found that his wife had gone to an upstairs bedroom, he pushed his way in and they shoved a rolling television back and forth at one another until it fell from the stand. The defendant followed her into the dining room, and accused her of having a lesbian relationship. When she responded by throwing a vase at him, he reached for his revolver which was on the dining room table, and shot her as she tried to pull the gun away from him. Under these circumstances, the jury could have concluded that the defendant pulled the trigger, with the gun pointed at the victim's head, without the conscious objective of causing death, but recklessly and under circumstances evincing a depraved indifference to human life (see, People v Register, 60 N.Y.2d 270, cert denied 466 U.S. 953; People v Licitra, 47 N.Y.2d 554, rearg denied 53 N.Y.2d 938; People v Samuel, 138 A.D.2d 543; People v Lucchese, 127 A.D.2d 699, lv denied 69 N.Y.2d 1006; People v Guarino, 56 A.D.2d 638). Upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (CPL 470.15).
We have examined the defendant's remaining contentions and find them to be either unpreserved for appellate review or without merit. Lawrence, J.P., Kunzeman, Eiber and Balletta, JJ., concur.