People v. Garrison

Smith and Lunn, JJ. (dissenting in part).

We respectfully dissent in part because we cannot agree with the majority that the judgment should be modified by reversing that part convicting defendant of depraved indifference murder (Penal Law § 125.25 [2]). The majority correctly acknowledges that defendant failed to preserve for our review his contention that the evidence with respect to the issues of recklessness and depraved indifference is legally insufficient to support the conviction of that crime and, unlike the majority, we see no reason to exercise our power to review that contention as…