People v. Rivera

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

Feb 10, 2005

Versions:15 A.D.3d 247

789 N.Y.S.2d 158

2005 N.Y. App. Div. LEXIS 1467

The People of the State of New York, Respondent, v Miguel Rivera, Appellant. [789 NYS2d 158]—

Judgment, Supreme Court, Bronx County (Phylis Skloot Bamberger, J.), rendered January 29, 2003, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 24¹/₂ years to life, and order, same court and Justice, entered on or about May 26, 2004, which denied defendant‘s CPL 440.10 motion to vacate the judgment, unanimously affirmed.

Defendant‘s challenge to the sufficiency of the evidence establishing depraved indifference murder is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that the jury could have reasonably concluded that defendant lacked homicidal intent, but instead acted under circumstances evincing a depraved indifference to human life when he impulsively began firing wildly in a small grocery store, endangering numerous persons (see People v Payne, 3 NY3d 266, 272 [2004]; People v Sanchez, 98 NY2d 373 [2002]).

The record establishes that defendant received effective assistance of counsel (see People v Benevento, 91 NY2d 708, 713-714 [1998]; People v Hobot, 84 NY2d 1021, 1024 [1995]; see also Strickland v Washington, 466 US 668 [1984]).

We have considered and rejected defendant‘s remaining claims. Concur—Andrias, J.P., Saxe, Sullivan, Ellerin and Sweeny, JJ.