People v. Cuff

231 A.D.2d 427, 647 N.Y.S.2d 203, 1996 N.Y. App. Div. LEXIS 9339

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 17, 1996
• Status: Published

Opinion

Judgment, Supreme Court, Bronx County (Fred Eggert, J.), rendered February 5, 1992, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 15 years to life, unanimously affirmed.

Defendant’s challenge to the sufficiency of the evidence is unpreserved for appellate review as a matter of law since his motion for a trial order of dismissal was not specifically directed to the deficiencies now raised on appeal (see, People v Gray, 86 NY2d 10, 19). In any event, viewing the evidence in a light most favorable to the People, and giving them the benefit of every reasonable inference, defendant’s guilt of depraved mind murder was proven beyond a reasonable doubt (see, People v Roe, 74 NY2d 20, 23). We also find the verdict was not against the weight of the evidence. Two prosecution witnesses separately identified defendant as the armed gunman, who, after a confrontation between two groups of youths on the subway, chased the two victims between the subway cars and "nudged” one of them in the neck with the gun, causing him to fall to his death. This "nudging” occurred while the deceased was in the extraordinarily precarious position of hanging on to the outside of the subway car, a position to which the deceased had been driven by defendant’s actions. Therefore, the "nudging” was clearly a proximate cause of death and constituted conduct satisfying all the elements of depraved mind murder. Any inconsistencies in the witnesses’ testimony were placed before the jury, and we find no reason to disturb its determination (see, People v Dominguez, 227 AD2d 184).

We have considered defendant’s remaining contentions and find them to be without merit. Concur—Rosenberger, J. P., Ellerin, Wallach, Tom and Andrias, JJ.