People v. McElroy

May 19, 1997
Versions:239 A.D.2d 521
658 N.Y.S.2d 947
1997 N.Y. App. Div. LEXIS 5326

Appeal by the defendant from a judgment of the County Court, Westchester County (Angiolillo, J.), rendered May 1, 1995, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt of depraved indifference murder beyond a reasonable doubt (see, People v Morgan, 207 AD2d 501; People v Sosa, 181 AD2d 532; People v Goode, 175 AD2d 181).

Moreover, since the defendant testified on direct examination to facts that were in conflict with evidence precluded by the court’s Sandoval ruling (see, People v Sandoval, 34 NY2d 371), he "opened the door” to the admission of such evidence, and thus, he was properly subject to impeachment by the prosecution’s use of the otherwise precluded evidence (see, People v Fardan, 82 NY2d 638, 646; see also, People v Morgan, 171 AD2d 698, 699; People v Rios, 166 AD2d 616, 617-618).

The defendant’s remaining contentions are either unpreserved for appellate review or without merit. O’Brien, J. P., Copertino, Thompson and Krausman, JJ., concur.