People v. Dac

Appellate Division of the Supreme Court of New York

People v. Dac

203 A.D.2d 191, 611 N.Y.S.2d 154, 1994 N.Y. App. Div. LEXIS 4195

Appellate Division of the Supreme Court of the State of New York·Decided April 26, 1994·Published

Opinion

—Judgment, Supreme Court, New York County (Michael Corriero, J.), rendered December 18, 1991, convicting defendant, after a jury trial, of assault in the first degree, and sentencing her to a term of IV2 to 4 Vi years, unanimously affirmed.

Viewing the evidence in the light most favorable to the People and giving them the benefit of every reasonable inference, the People’s evidence clearly established defendant’s guilt beyond a reasonable doubt (People v Contes, 60 NY2d 620, 621). Defendant’s conduct in savagely beating, kicking and punching the victim, placing a plastic bag over her head, threatening her with a knife, agreeing to "finish her off”, and then throwing her from a window 13 to 14 feet onto an enclosed concrete courtyard littered with metal debris and a jagged tree trunk clearly created a very substantial risk of death and evinced a depraved indifference to human life.

Defendant’s claim with respect to the court’s instruction on depraved indifference has not been preserved as a matter of law (CPL 470.05 [2]) and we declined to reach it in the interest [192]*192of justice. Were we to reach it, we would find that the instruction was proper (see, People v Thomas, 178 AD2d 363, 364). Concur — Rosenberger, J. P., Ellerin, Ross, Nardelli and Williams, JJ.

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—Judgment, Supreme Court, New York County (Michael Corriero, J.), rendered December 18, 1991, convicting defendant, after a jury trial, of assault in the first degree, and sentencing her to a term of IV2 to 4 Vi years, unanimously affirmed.

Viewing the evidence in the light most favorable to the People and giving them the benefit of every reasonable inference, the People’s evidence clearly established defendant’s guilt beyond a reasonable doubt (People v Contes, 60 NY2d 620, 621). Defendant’s conduct in savagely beating, kicking and punching the victim, placing a plastic bag over her head, threatening her with a knife, agreeing to "finish her off”, and then throwing her from a window 13 to 14 feet onto an enclosed concrete courtyard littered with metal debris and a jagged tree trunk clearly created a very substantial risk of death and evinced a depraved indifference to human life.

Defendant’s claim with respect to the court’s instruction on depraved indifference has not been preserved as a matter of law (CPL 470.05 [2]) and we declined to reach it in the interest [192]*192of justice. Were we to reach it, we would find that the instruction was proper (see, People v Thomas, 178 AD2d 363, 364). Concur — Rosenberger, J. P., Ellerin, Ross, Nardelli and Williams, JJ.

People v. Dac, 203 A.D.2d 191, 611 N.Y.S.2d 154, 1994 N.Y. App. Div. LEXIS 4195 (N.Y. Ct. App. 1994).

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Opinion

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