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People v. Brammer

189 A.D.2d 885 Court N.Y. App. Div. Decision date 1993-01-25 English

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p. 885
The People of the State of New York, Respondent, v Joseph Brammer, Jr., Also Known as Tex, Appellant.

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

p. 886
without 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.

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