People v. Brammer

Appellate Division of the Supreme Court of New York

People v. Brammer

189 A.D.2d 885, 592 N.Y.S.2d 761, 1993 N.Y. App. Div. LEXIS 580

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

DecidedJanuary 25, 1993

StatusPublished

Cited by10 cases

This text of 189 A.D.2d 885 (People v. Brammer) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Brammer, 189 A.D.2d 885, 592 N.Y.S.2d 761, 1993 N.Y. App. Div. LEXIS 580 (N.Y. Ct. App. 1993).

Pincite

Opinion

Appeal by the defendant from a judgment of the County Court, Dutchess County (Hillery, J.), rendered September 28, 1989, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s contention that the single-count indictment amplified by the amended bill of particulars was duplicitous inasmuch as it charged him with the commission of multiple crimes (see, CPL 200.30, 200.50 [3]), has not been preserved for appellate review (see, CPL 470.05 [2]; People v Palmer, 184 AD2d 534; People v Lopez, 175 AD2d 267, 268; People v Barrett, 166 AD2d 657, 658). In any event, this claim is [886]*886without merit. Although the amended bill of particulars asserted that two courses of conduct, i.e., a series of assaults and failure to obtain medical care, caused the death of the 3-month-old infant, this conduct was all part of the same incident on October 7, 1988. Depraved indifference murder, as defined in Penal Law § 125.25 (2), does not necessarily contemplate the performance of a single act but, rather, is a crime that by its nature may be committed by one act or by multiple acts and thus, readily permits characterization as a continuing offense (see, People v Ribowsky, 77 NY2d 284, 289; People v Keindl, 68 NY2d 410). Therefore, we find that the indictment, which permitted the jury to find the defendant guilty of depraved indifference murder upon a combination of acts or in one of two alternative ways, was proper (see, People v Keindl, supra, at 421; see also, People v Wong, 182 AD2d 98).

Viewing the evidence in the light most favorable to the People (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Indeed, the evidence, including evidence that the defendant hit, threw, and dropped the infant before squeezing her neck, resulting in her death caused by a combination of multiple bruises and traumatic asphyxiation, overwhelmingly proved that he was guilty of depraved indifference murder (see, Penal Law § 125.25 [2]). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15 [5]).

We further find that the sentence imposed was neither harsh nor excessive (see, People v Suitte, 90 AD2d 80). Sullivan, J. P., Miller, Ritter and Pizzuto, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

Appeal by the defendant from a judgment of the County Court, Dutchess County (Hillery, J.), rendered September 28, 1989, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s contention that the single-count indictment amplified by the amended bill of particulars was duplicitous inasmuch as it charged him with the commission of multiple crimes (see, CPL 200.30, 200.50 [3]), has not been preserved for appellate review (see, CPL 470.05 [2]; People v Palmer, 184 AD2d 534; People v Lopez, 175 AD2d 267, 268; People v Barrett, 166 AD2d 657, 658). In any event, this claim is [886]*886without merit. Although the amended bill of particulars asserted that two courses of conduct, i.e., a series of assaults and failure to obtain medical care, caused the death of the 3-month-old infant, this conduct was all part of the same incident on October 7, 1988. Depraved indifference murder, as defined in Penal Law § 125.25 (2), does not necessarily contemplate the performance of a single act but, rather, is a crime that by its nature may be committed by one act or by multiple acts and thus, readily permits characterization as a continuing offense (see, People v Ribowsky, 77 NY2d 284, 289; People v Keindl, 68 NY2d 410). Therefore, we find that the indictment, which permitted the jury to find the defendant guilty of depraved indifference murder upon a combination of acts or in one of two alternative ways, was proper (see, People v Keindl, supra, at 421; see also, People v Wong, 182 AD2d 98).

Viewing the evidence in the light most favorable to the People (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Indeed, the evidence, including evidence that the defendant hit, threw, and dropped the infant before squeezing her neck, resulting in her death caused by a combination of multiple bruises and traumatic asphyxiation, overwhelmingly proved that he was guilty of depraved indifference murder (see, Penal Law § 125.25 [2]). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15 [5]).

We further find that the sentence imposed was neither harsh nor excessive (see, People v Suitte, 90 AD2d 80). Sullivan, J. P., Miller, Ritter and Pizzuto, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

189 A.D.2d 885, 592 N.Y.S.2d 761, 1993 N.Y. App. Div. LEXIS 580, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-brammer-nyappdiv-1993.

Opinion

Related

Cite This Page — Counsel Stack