People v. Magliato

Asch, J. (dissenting).

The majority asserts that defendant’s testimony, “credited by the jury,” that he “accidentally * * * exerted the minimum pressure necessary to fire the weapon”, does not warrant the conclusion that his action was so mindless of consequences as to constitute a depraved indifference to human life. I disagree and would affirm.

When defendant went into a shooter’s crouch, cocked and aimed the gun at Giani’s head, he was acting in such a reckless manner as to evidence a depraved indifference to life. Defendant’s own witnesses testified that once the Colt .38 was cocked, even…