People v. Stewart — 239 A.D.2d 614

Majority

p. 614

The People of the State of New York, Respondent, v Mark Stewart, Appellant.

[658 NYS2d 998]

Appeal by the defendant from a judgment of the County Court, Dutchess County (Dolan, J.), rendered October 21, 1994, 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 evidence was legally insufficient is unpreserved for appellate review (see, CPL 470.05 [2]). In any event, viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620 ), we find that it was legally sufficient to support the defendant’s conviction 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 of guilt was not against the weight of the evidence (see, CPL 470.15 [5]). The forensic

p. 615

pathologist testified that the decedent had been stabbed four times in the abdomen and upper abdomen and twice in the back. One wound to the upper abdomen struck with such force that it penetrated the decedent’s heart and was fatal regardless of whether medical care was available. Further, there was testimony that the defendant and the decedent exchanged words shortly before the altercation and that the defendant struck the first blow. The jury, therefore, reasonably could have concluded that the defendant inflicted the fatal wounds and that he evinced a depraved indifference to human life (see, e.g., People v Morgan, 207 AD2d 501 , affd 87 NY2d 878 ; People v Rivera, 205 AD2d 807 ; People v Applegate, 176 AD2d 888 ).

The defendant’s remaining contentions are without merit. Miller, J. P., Ritter, Joy and Krausman, JJ., concur.

Cases cited

People v. Contes 60 NY2d 620 N.Y. 1983-09-01 p. 614
People v. Morgan 87 NY2d 878 N.Y. 1995-12-27 p. 615
People v. Applegate 176 AD2d 888 N.Y. App. Div. 1991-10-21 p. 615