90 A.D.2d 972 | N.Y. App. Div. | 1982
Judgment unanimously affirmed. Memorandum: Late on a Friday evening in January, 1977, the defendant fired three shots in a crowded barroom, killing Marvin Lindsay and seriously injuring two other patrons. A jury found the defendant guilty of one count of murder in the second degree for recklessly causing death under circumstances evincing a depraved indifference to human life, and two counts of assault in the first degree. From the evidence submitted at the trial, the jury could have inferred that the defendant was intoxicated at the time of the shootings. Two points raised by defendant on this appeal deserve comment: that the evidence did not support a verdict upon the theory of depraved indifference, and that the court erred in refusing to charge the jury that voluntary intoxication could negate the element of depraved indifference required for a conviction of murder in the second degree. The proof supports the charge that defendant acted recklessly under circumstances evincing a depraved indifference to human life. At the time of the shooting, the barroom “was packed” with about 50 people. When a fight started between defendant’s friend and a Willie Mitchell, defendant shot at Mitchell from some distance away. The bullet missed Mitchell and struck Lawrence Evans in the buttocks. Defendant then approached Mitchell and from one foot away fired a shot into Mitchell’s abdomen. As the wounded Mitchell ran away, Marvin Lindsay, who up until that time was completely uninvolved, walked