People v. Hafeez, 762 N.Y.S.2d 572 (2003)

[792 NE2d 1060, 762 NYS2d 572]

The People of the State of New York, Respondent-Appellant,

v Ravie Hafeez, Appellant-Respondent.

Argued April 30, 2003; decided June 10, 2003

Cross appeals, by permission of an Associate Judge of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Second Judicial Department, entered June 24, 2002, which modiŽed, on the law, and, as modiŽed, armed a judgment of the Supreme Court (Arthur J. Cooperman, J.), rendered in Queens County upon a verdict convicting defendant of murder in the second degree, conspiracy in the fourth degree, tampering with physical evidence and hindering prosecution in the Žrst degree. The modiŽcation consisted of reversing defendant's convictions for murder in the second degree, conspiracy in the fourth degree and hindering prosecution in the Žrst degree, vacating the sentences imposed thereon, and dismissing those counts of the indictment.

People v Hafeez, 295 AD2d 624, modiŽed.

1. Defendant's conviction of depraved indierence murder, arising from his codefendant's fatal attack upon the victim, cannot be upheld, because there is no record support for the jury's decision that defendant's conduct, or that of his codefendant, was reckless and depraved rather than intentional. Defendant's guilt is premised upon a theory of accomplice liability under which defendant can be guilty of depraved indierence murder only if he intentionally aided codefendant in commission of the crime and shared the codefendant's culpable mental state. Because the actions of both defendants were focused on Žrst isolating, and then intentionally injuring, the victim, there is no valid line of reasoning that could support a jury's conclusion that defendant possessed the mental culpability required for depraved indierence murder.

2. In reversing defendant's conviction for conspiracy in the fourth degree the Appellate Division applied an incorrect requirement when it concluded that the People failed to prove conduct constituting a class A felony. Pursuant to Penal Law § 105.10 (1), the People must show that defendant agreed to engage in or cause conduct that constitutes a class B or class C felony, and because the evidence was sucient to establish that defendant intended to cause, and in fact did cause, serious physical injury to the victim through an attack with a deadly weapon, defendant's conduct, in concert with codefendant, could amount to a conspiracy to commit the class B felony of assault in the Žrst degree.

Points of Counsel

3. Defendant was properly convicted of tampering with physical evidence (see Penal Law § 215.40 [2]). There was sucient evidence adduced at trial that defendant believed that codefendant intended to discard the weapon used in a stabbing and acquiesced in the request to stop his van to give codefendant an opportunity to toss what remained of the knife into a sewer.

TOTAL CLIENT-SERVICE LIBRARYL REFERENCES

By the Publisher’s Editorial Sta

Am Jur 2d, Conspiracy §§ 13, 16, 39; Homicide §§ 25–27,

30, 45; Obstructing Justice §§ 34, 35, 37, 82.

Mckinney's, Penal Law § 105.10 (1); § 215.40 (2). NY Jur 2d, Criminal Law §§ 3563, 3570, 3798, 3799, 3802,

4750, 4756, 4757.

Validity and construction of statute deŽning homicide by

conduct manifesting ‘‘depraved indierence.’’ 25 ALR4th 311.

Roger Bennet Adler, P.C., New York City (Roger Bennet Adler of counsel), for appellant-respondent. I. The evidence was legally insucient to convict defendant of tampering with physical evidence. (People v Nicholas, 70 AD2d 804; People v Simon, 145 Misc 2d 518; People v Pappas, 163 Misc 2d 1029; People v Ledwon, 153 NY 10; People v Tucker, 72 NY2d 849; People v Agron, 10 NY2d 130; People v La Belle, 18 NY2d 405.) II. The trial court erred in precluding the defense from utilizing a partially audible tape during cross-examination for impeachment purposes. (Alford v United States, 282 US 687; Gordon v United States, 344 US 414; Crane v Kentucky, 476 US 683; Jackson v Denno, 378 US 368; People v McGee, 49 NY2d 48; People v Beasley, 62 NY2d 767; People v Sanabria, 201 AD2d 513; People v Huertas, 75 NY2d 487; People v Grin, 173 AD2d 216; People v Messier, 191 AD2d 819.) III. The trial court erred in not imposing a sanction for the late disclosure of Rosario material. (People v Rosario, 9 NY2d 286; People v Jones, 70 NY2d 547; People v Ranghelle, 69 NY2d 56; People v Martinez, 71 NY2d 937; People v Kelly, 62 NY2d 516; People v Andino, 244 AD2d 194; People v Carracedo, 89 NY2d 1059; People v Page, 240 AD2d 765.) IV. Multiple instances of improper argument deprived defendant of a fair trial. (People v Ashwal, 39 NY2d 105; People v Parker, 178 AD2d 665; People v Bailey, 87

AD2d 1006, 58 NY2d 272; People v Fielding, 158 NY 542; People v Zimmer, 51 NY2d 390; People v Williams, 122 AD2d 92; People v Moore, 149 AD2d 629; People v Lovello, 1 NY2d 436; People v Wright, 41 NY2d 172; People v Rosenfeld, 11 NY2d 290.) V. The proof at trial was legally insucient to properly convict defendant of depraved mind murder. (People v Ledwon, 153 NY 10; United States v Mulheren, 938 F2d 364; United States v Wiley, 846 F2d 150; People v Register, 60 NY2d 270; People v Poplis, 30 NY2d 85; Darry v People, 10 NY 120; People v Magliato, 110 AD2d 266; People v Fenner, 61 NY2d 971; People v Lilly, 71 AD2d 393; People v Roe, 74 NY2d 20.) VI. The conspiracy count was properly vacated. (People v Berkowitz, 50 NY2d 333; People v Schwimmer, 66 AD2d 91, 47 NY2d 1004; People v Joyce, 100 AD2d 343; People v Evangelista, 88 AD2d 804; United States v Rosenblatt, 554 F2d 36; People v Agron, 10 NY2d 130; United States v Di Stefano, 555 F2d 1094; People v McGee, 49 NY2d 48; United States v Pinckney, 85 F3d 4; United States v Wardy, 777 F2d 101.)

Richard A. Brown, District Attorney, Kew Gardens (John M. Castellano and Roni C. Piplani of counsel), for respondentappellant. I. The Appellate Division erred in reversing defendant's conviction for depraved indierence murder, because the evidence established that defendant both intentionally aided his accomplice and, at the time of the stabbing, possessed the state of mind required for depraved indierence murder. (People v Contes, 60 NY2d 620; People v Williams, 84 NY2d 925; People v Ford, 66 NY2d 428; Jackson v Virginia, 443 US 307; People v Rossey, 89 NY2d 970; People v Bleakley, 69 NY2d 490; People v Sanchez, 98 NY2d 373; People v Register, 60 NY2d 270; People v Sawyer, 274 AD2d 603, 96 NY2d 815; People v White, 191 AD2d 604, 81 NY2d 1082.) II. The Appellate Division erred in reversing defendant's conviction for conspiracy in the fourth degree on the ground that the prosecution failed to establish that defendant conspired to commit a class A felony. (People v Cammare, 171 AD2d 1070; People v McGee, 49 NY2d 48; People v Owusu, 93 NY2d 398; People v Carter, 53 NY2d 113.) III. The People proved beyond a reasonable doubt that defendant tampered with evidence by helping to dispose of the murder weapon. (People v Contes, 60 NY2d 620; People v Williams, 84 NY2d 925; People v Ford, 66 NY2d 428; Jackson v Virginia, 443 US 307; People v Bleakley, 69 NY2d 490; People v Cardenas, 239 AD2d 594, 90 NY2d 902; People v Nicholas, 70 AD2d 804.) IV. The court did not restrict defendant's ability to cross-examine a prosecution witness, and

Opinion per Ciparick, J.

defendant's claims to the contrary are unpreserved, meritless, and belied by the record. (People v Michael, 48 NY2d 1; People v Gray, 86 NY2d 10; People v Fleming, 70 NY2d 947; People v West, 56 NY2d 662; People v Dunn, 85 NY2d 956; People v Clark, 41 NY2d 612; People v Albert, 85 NY2d 851; People v Heide, 84 NY2d 943; People v Medina, 53 NY2d 951; People v Siegel, 87 NY2d 536.) V. The court properly refused to impose sanctions on the prosecution for its late disclosure of Rosario material. Defendant's claims to the contrary are waived, abandoned, and meritless. (People v Seaberg, 74 NY2d 1; People v Graves, 85 NY2d 1024; People v Michael, 48 NY2d 1; People v Ranghelle, 69 NY2d 56; People v Perez, 65 NY2d 154; People v Poole, 48 NY2d 144; People v Goins, 73 NY2d 989.) VI. The prosecutor's summation comments were either fair comment on the evidence or a proper response to the defense summation. Defendant's claims to the contrary are unpreserved and meritless. (People v Utley, 45 NY2d 908; People v Gray, 86 NY2d 10; People v Tevaha, 84 NY2d 879; People v Fleming, 70 NY2d 947; People v Monroe, 90 NY2d 982; People v Heide, 84 NY2d 943; People v Narayan, 54 NY2d 106; People v Ashwal, 39 NY2d 105; People v Arce, 42 NY2d 179; People v Marks, 6 NY2d 67.)

Ciparick, J. We recently held in People v Sanchez (98 NY2d 373 [2002]) that, in the circumstances presented in that prosecution, a jury could reasonably Žnd defendant's homicidal level of mental culpability to be reckless rather than intentional. We are once again faced with the same question, but inasmuch as there is no record support here for the jury's decision that defendant's conduct, or that of his codefendant, was reckless and depraved rather than intentional, the jury's Žnding of depraved indierence murder cannot be upheld.

In January 1999, defendant and his close friend and housemate, the codefendant, became involved in a confrontation with the deceased at a local bar in Queens. The deceased threw a pool ball at codefendant, injuring his eye. Months later, defendant plotted with codefendant and a third person to lure the victim out of the same Queens bar. When he came out, defendant pushed the victim up against a wall, then stepped aside to allow codefendant to take over. The men struggled and codefendant administered the fatal knife wound to the heart. Defendant and codefendant then drove away from the scene in

Opinion per Ciparick, J.

defendant's van, stopping along the way to allow the codefendant to get out and toss the knife handle—all that remained of the murder weapon—into a sewer.

In the subsequent police investigation, defendant stated that codefendant had told him earlier in the evening that he was carrying a knife and had showed it to defendant while they were waiting for the victim to come out of the bar. Defendant stated, however, that he did not know his friend was actually going to use the knife and, moreover, did not learn that the victim had been stabbed until after he and codefendant left the scene. Although defendant initially denied knowledge of the knife's whereabouts, he eventually led police to the sewer where the handle was recovered. The remaining portion of the knife was later found at the scene of the crime.

A grand jury indicted defendant and codefendant on two counts of second degree murder, charging both intentional murder (Penal Law § 125.25 [1]) and depraved indierence murder (Penal Law § 125.25 [2]). They were also charged with conspiracy in the fourth degree, tampering with physical evidence, criminal possession of a weapon in the fourth degree and hindering prosecution in the Žrst degree. At trial, the prosecution's murder case against defendant was premised on a theory of accomplice liability. The jury acquitted defendant on the intentional murder charge, but found him guilty of depraved indierence murder. The jury also convicted defendant on the conspiracy, tampering and hindering prosecution charges, but acquitted him on the charge of criminal possession of a weapon.1

On defendant's appeal, the Appellate Division reversed the conviction for depraved indierence murder (295 AD2d 624 [2002]). In the Court's view, the evidence with respect to depraved indierence murder was legally insucient to establish defendant's guilt of that crime. The Court also reversed the conspiracy and hindering prosecution convictions, concluding that there was no evidence establishing either that defendant planned conduct which would constitute a class A felony or that defendant rendered criminal assistance to a person who committed a class A felony. The verdict was otherwise armed. A Judge of this Court granted leave to appeal to both the People, who appeal the reversal of the depraved indierence murder and conspiracy convictions, and the defendant, who appeals the one remaining conviction for tampering with

1. Codefendant pleaded guilty to one count of manslaughter in the Žrst degree in full satisfaction of the charges against him.

Opinion per Ciparick, J.

physical evidence. We now modify, arming as to the depraved indierence and tampering counts and reinstating the conviction for conspiracy.

[1] In our view, the Appellate Division properly reversed the conviction for depraved indierence murder. As developed at defendant's trial, no reasonable view of the evidence establishes codefendant's guilt of depraved indierence murder.2 The People argue that defendant is guilty of depraved indierence murder because, viewing the evidence in the light most favorable to the People, as we must, defendant was aware of the grave risk that codefendant would use the knife and disregarded that risk by helping to lure the victim out of the bar and pushing him up against a wall, exposing him to his friend's deadly attack. However, defendant's guilt is premised upon a theory of accomplice liability and under such a theory, defendant can be guilty of depraved indierence murder only if he intentionally aided codefendant in commission of the crime and shared the codefendant's culpable mental state (see People v Brathwaite, 63 NY2d 839 [1984]; Penal Law § 20.00).3

The trial evidence concerning codefendant's conduct was consistent with intentional murder as opposed to depraved indifference murder (see People v Sanchez, 98 NY2d 373 [2002]). Here, codefendant plotted his revenge for months in advance and eectuated his plan on the night of the stabbing by a scheme intended to place the victim in a position where he would be vulnerable to attack. Codefendant concealed a knife in his sleeve poised to slip into his hand. The plan culminated in a single deliberate wound to the chest that perforated the victim's heart. It was a quintessentially intentional attack directed solely at the victim.

2. Penal Law § 125.25 (1) provides that a person is guilty of murder in the second degree when ‘‘[w]ith intent to cause the death of another person, he causes the death of such person or of a third person.’’

Penal Law § 125.25 (2) provides that one is also guilty of murder in the second degree when ‘‘[u]nder circumstances evincing a depraved indierence to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.’’

Penal Law § 15.05 (3) provides that ‘‘[a] person acts recklessly * * * when he is aware of and consciously disregards a substantial and unjustiŽable risk that such result will occur * * *.’’

3. Penal Law § 20.00 provides that ‘‘[w]hen one person engages in conduct which constitutes an oense, another person is criminally liable for such conduct when, acting with the mental culpability required for the commission thereof, he solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct.’’

Opinion per Ciparick, J.

To meet their burden for depraved indierence murder, the People must show that defendant's acts were ‘‘imminently dangerous and presented a very high risk of death to others’’ (see People v Register, 60 NY2d 270, 274 [1983]; People v Russell, 91 NY2d 280 [1998]). That burden was met in Sanchez, which involved the sudden shooting of a victim by a defendant who reached around from behind a door and Žred into an area where children were playing, presenting a heightened risk of unintended injury. Here the actions of both defendants were focused on Žrst isolating, and then intentionally injuring, the victim. From this record there exists no valid line of reasoning that could support a jury's conclusion that defendant possessed the mental culpability required for depraved indierence murder. The ‘‘heightened recklessness’’ required for depraved indierence murder was simply not present (see Sanchez, 98 NY2d at 380). Thus the order of the Appellate Division reversing the conviction for depraved indierence murder was proper.

[2] We disagree, however, and reverse the Appellate Division's holding with respect to the conspiracy conviction. Under Penal Law § 105.10 (1), the People must show that defendant agreed to engage in or cause conduct that constitutes a class B or class C felony. In this regard the Appellate Division applied an incorrect requirement when it concluded that the People failed to prove conduct constituting a class A felony. The evidence here was sucient to establish that defendant intended to cause, and in fact did cause, serious physical injury to the victim through an attack with a deadly weapon. Thus, defendant's conduct, in concert with codefendant, could amount to a conspiracy to commit the class B felony of assault in the Žrst degree (see Penal Law § 120.10 [1]).4 In connection with the conspiracy charge, the jury was instructed on the elements of Žrst degree assault and the requirement of an overt act. On remittal, the Appellate Division will have to consider whether the evidence supports the jury's conclusion that defendant conspired to commit conduct constituting a class B felony.

[3] Finally, we uphold defendant's conviction for tampering with physical evidence. As it relates to the facts of this case, a

4. Penal Law § 105.10 (1) states that a person ‘‘is guilty of conspiracy in the fourth degree when, with intent that conduct constituting * * * a class B or class C felony be performed, he or she agrees with one or more persons to engage in or cause the performance of such conduct.’’

Penal Law § 120.10 (1) states that one is guilty of assault in the Žrst degree when ‘‘[w]ith intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument.’’

Concurring in part and dissenting in part opinion per Read, J.

person is guilty of tampering when, believing that physical evidence is about to be used in a prospective ocial proceeding, he intentionally suppresses such evidence through an act of concealment (see Penal Law § 215.40 [2]). There was sucient evidence adduced at trial that defendant believed that codefendant intended to discard the weapon used in the stabbing and acquiesced in the request to stop his van to give his friend an opportunity to toss what remained of the knife into a sewer.

Defendant's remaining arguments, regarding improper evidentiary rulings by the trial court and prosecutorial misconduct, are without merit.

Accordingly, the order of the Appellate Division should be modiŽed by reinstating the conviction for conspiracy in the fourth degree and remitting to the Appellate Division for consideration of the facts and, as so modiŽed, armed.

Rosenblatt, J. (concurring). I concur, insofar as the Court concludes that defendant's actions did not constitute depraved indierence murder. I also agree with the Court's determinations as to conspiracy and tampering with physical evidence.

Given People v Sanchez (98 NY2d 373 [2002]), I recognize and applaud the Court's conclusion that the case before us involves actions bespeaking intentional conduct rather than heightened recklessness. In this manner, the Court is limiting Sanchez by properly rejecting the incongruous notion that an intentional killing can reect depraved indierence. It is reassuring, therefore, that there are now six Judges of this Court who recognize that even under Sanchez (with which I have disagreed) depraved indierence murder does have its limits. I write separately to emphasize that, in my view, depraved indifference murder was not proven in this case for reasons I expressed in my dissent in Sanchez (98 NY2d at 394-416), notably, that the critical element in depraved indierence murder is not recklessness, but depraved indierence. Because the proof was legally insucient to establish depraved indierence, I would arm the order of the Appellate Division, as modiŽed.

Read, J. (concurring in part and dissenting in part). I disagree with the majority's conclusion that there is no record support for the jury's decision that defendant's and codefendant's conduct was reckless and depraved rather than intentional. Accordingly, I respectfully dissent from that part of the Court's opinion arming the Appellate Division's reversal of the depraved indierence murder conviction.

Concurring in part and dissenting in part opinion per Read, J.

The jury convicted defendant of depraved indierence murder under an accomplice liability theory (see Penal Law § 20.00). The People, therefore, had to show that defendant intentionally aided his codefendant, and that they shared the same state of mind when committing the crime (see People v Sanchez, 98 NY2d 373 [2002]; see also People v Brathwaite, 63 NY2d 839, 842 [1984]). Generally, evidence of a ‘‘single deliberate wound to the chest that perforated the victim's heart’’ (majority op at 258), following months of plotting revenge, is consistent only with intentional murder, as the majority points out. But in this case the jury also heard testimony at trial consistent with depraved indierence murder.

Defendant testiŽed, and the People introduced several postarrest statements that he made to law enforcement ocials and other witnesses. He consistently claimed that he and codefendant never intended to kill the victim. Rather, as the Appellate Division noted, ‘‘defendant and a friend [codefendant] lured the victim out of a bar, planning to beat him’’ (People v Hafeez, 295 AD2d 624, 624 [2d Dept 2002]). Additionally, defendant— the only witness to the murder—described a quick moving ŽstŽght. The jury heard that, after defendant shoved the victim against a wall, codefendant was ‘‘all over’’ the victim for about 30 seconds, throwing punches. After that, the victim pushed his way back into the bar. Moreover, in addition to the knife wound to the chest, the victim suered a small knife wound on the top of his head. This fact bolsters defendant's account of a melee, not a planned murder.

While my colleagues may disbelieve defendant's testimony, the jurors apparently credited at least some of it. After all, by acquitting of intentional murder they expressly found that defendant and codefendant did not have a ‘‘conscious objective * * * to cause’’ (People v Sanchez, 98 NY2d at 377, quoting Penal Law § 15.05 [1]) the victim's death. The jury also convicted of a conspiracy premised on intending to cause serious physical injury, not death. Thus, viewing defendant's testimony in the light most favorable to the People (i.e., the jurors believed that he and codefendant intended ‘‘only’’ to stab the victim, whose death resulted from the half-minute struggle that ensued after they ambushed him, not from an immediate, calculated killing thrust to the heart), ‘‘a rational jury could harbor a reasonable doubt that the homicide * * * was intentional’’ (People v Sanchez, 98 NY2d at 377). Certainly, the jurors heard no testimony that the stabbing occurred immediately, or that codefendant aimed for the victim's chest.

Concurring in part and dissenting in part opinion per Read, J.

Further, a rational jury could have concluded that codefendant committed depraved indierence murder. Codefendant, armed with a nine-inch steak knife, carried out a plan designed to lure the unsuspecting victim outside and neutralize his size and weight advantage. Arguably, setting upon a momentarily vulnerable victim with a nine-inch knife intending to injure, but not to kill, was as ‘‘imminently dangerous and presented a[s] grave [a] risk of death’’ as ‘‘[t]he Žring of a loaded gun in an enclosed space within 18 inches of another person’’ (id. at 385). Codefendant, therefore, acted with the ‘‘extreme recklessness’’ (id. at 380) necessary for depraved indierence murder.

Besides possessing the necessary mens rea, ‘‘based on an objective assessment of the risk [co]defendant recklessly created and disregarded, the likelihood of causing death from [co]defendant's conduct was so obviously severe that it evinced a depraved indierence to human life’’ (id. at 384). In fact, ‘‘objective circumstances manifesting depraved indierence’’ (id. at 385) that we identiŽed in Sanchez are similar to circumstances here. There, we noted that the ‘‘[d]efendant felt insulted by his victim’’ and ‘‘[i]nstead of amicably settling their dispute’’ (id. at 385, 386), Žred a gun at his chest. Here, there was evidence that defendant and codefendant both ‘‘felt insulted’’ (id. at 385) by the victim's earlier altercation with them, and they certainly did not settle their dispute ‘‘amicably’’ (id. at 386); instead, they plotted to entice their victim outside with a bogus story designed to ensure that he would emerge from the bar alone and unsuspecting.

Additionally, given the victim's size advantage over codefendant, it was likely that he always intended to use the knife hidden in his sleeve. Surely, codefendant could not have expected the physically larger and stronger victim not to Žght back. Codefendant ignored the risk that a struggle would occur while he was wielding the knife, which (the jurors could have reasonably concluded) might result in a misdirected or wild fatal thrust. Alternatively, the jurors could have rationally concluded that codefendant, bent on revenge, simply did not care whether he wounded his victim in a life-threatening area of his body; i.e., although codefendant may have intended ‘‘only’’ to wound, he paid no heed whether the wound might result in death.

To support the conclusion that the evidence was consistent with intentional murder only, the majority emphasizes that this ‘‘was a quintessentially intentional attack directed solely at the victim’’ (majority op at 258). Also, the majority suggests

Concurring in part and dissenting in part opinion per Read, J.

that the People met their burden for depraved indierence murder in Sanchez because the defendant there shot ‘‘into an area where children were playing, presenting a heightened risk of unintended injury’’ (majority op at 259). In Sanchez, however, we made clear that depraved indierence murder requires neither that the ‘‘conduct causing death * * * be ‘aimed at no one in particular’ ’’ nor that the conduct ‘‘ ‘endanger[ ] indiscriminately the lives of many’ ’’ (id. at 383, quoting Darry v People, 10 NY 120, 146 [1854]). While prior versions of depraved indierence murder may have had those two requirements, ‘‘[b]oth are entirely obsolete under the current statute’’ (People v Sanchez, 98 NY2d at 383).

Further, we have never intimated that a conviction for depraved indierence murder can stand only if the defendant had not intended to injure the ultimate victim. To the contrary, we have upheld depraved indierence murder convictions where there may have been intent to injure the victim so long as the defendant did not have a ‘‘conscious objective * * * to cause [the death]’’ (id. at 377) of that victim (see e.g. People v Poplis, 30 NY2d 85, 87 [1972] [baby's death ‘‘caused by repeated physical beatings by defendant’’ over several days]; see also People v Kibbe, 35 NY2d 407 [1974] [defendants abandoned intoxicated robbery victim on side of road on freezing night]).

Thus, it is of no moment that the attack here may have been intentional. What the jurors had to determine was whether codefendant committed the ‘‘oense’’ of depraved indierence murder during the attack. An ‘‘oense’’ is premised on ‘‘conduct’’ (see Penal Law § 10.00 [1]), which in turn consists of an ‘‘act’’ (a ‘‘bodily movement’’ [Penal Law § 15.00 (1)]) and associated mens rea (Penal Law § 15.00 [4]).

The codefendant may have intentionally thrust his knife at the victim's chest. Given the struggle that was occurring with the larger and stronger victim, however, it was not irrational for the jurors to conclude that codefendant lacked the conscious objective of causing death (see People v Sanchez, 98 NY2d at 377) when he acted. Indeed, the jurors could have rationally concluded that: codefendant was swinging wildly; the victim moved and codefendant hit an area at which he had not taken aim; the victim may have deected codefendant's arm; or codefendant simply did not care where the knife struck the victim as long as he managed to stab him. Accordingly, when codefendant made the ‘‘bodily movement’’ (Penal Law § 15.00 [1]) that resulted in the stab wound, the evidence

Concurring in part and dissenting in part opinion per Read, J.

viewed in the light most favorable to the People allowed the jurors rationally to conclude that codefendant's state of mind with respect to murder was not intentional, but rather was ‘‘extreme[ly] reckless[ ]’’ (People v Sanchez, 98 NY2d at 380).

Because I believe that there is sucient record support for the jury's conclusion that codefendant committed depraved indierence murder, I would modify the Appellate Division's order by reinstating defendant's conviction for that crime. Alternatively, my conclusion that defendant and codefendant committed depraved indierence murder necessarily entails a Žnding that they at least acted recklessly. I would, therefore, adopt the People's suggestion to modify the Appellate Division's corrective action by reinstating the count of the indictment charging depraved indierence murder and reducing the conviction to second-degree manslaughter (see CPL 470.40 [3]). I join in the remainder of the majority's modiŽcation of the Appellate Division's order.

Chief Judge Kaye and Judges Smith, Wesley and Graffeo concur with Judge Ciparick; Judge Rosenblatt concurs in result in a separate opinion; Judge Read dissents in part and votes to additionally reinstate defendant's conviction for murder in the second degree in another opinion.

Order modiŽed by reinstating the conviction for conspiracy in the fourth degree and remitting to the Appellate Division, Second Department, for consideration of the facts and, as so modiŽed, armed.