People v. Farino

Appellate Division of the Supreme Court of the State of New York

Aug 8, 2005

Versions:21 A.D.3d 427

800 N.Y.S.2d 194

Ordered that the judgment is affirmed.

The defendant‘s contentions that it was error to charge the jury on both intentional murder (see Penal Law § 125.25 [1]) and depraved indifference murder (see Penal Law § 125.25 [2]), and that the evidence was legally insufficient to support a conviction of depraved indifference murder (see Penal Law § 125.25 [2]; People v Payne, 3 NY3d 266 [2004]) are unpreserved for appellate review (see CPL 470.05 [2]; People v Gray, 86 NY2d 10, 19 [1995]), and we decline to reach them in the exercise of our interest of justice jurisdiction (see CPL 470.15 [3] [c], [6] [a]).

Most of the errors allegedly made by the prosecutor on summation were not objected to by defense counsel and therefore, are also unpreserved for appellate review (see People v Rivera, 73 NY2d 941 [1989]). With respect to the only preserved issue, the court clearly instructed the jury that the burden of proof remained on the People and did not shift to the defendant (see People v Martinez, 5 AD3d 278 [2004]).

The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).

Krausman, J.P., Luciano, Spolzino and Lifson, JJ., concur.