In People v. Gonzalez, 302 AD2d 870, 755 N.Y.S.2d 146 (4th Dept. 2003), aff'd, 1 NY3d 464, 807 N.E.2d 273, 775 N.Y.S.2d 224 (2004), the Fourth Department reversed a depraved indifference murder conviction when the dual charges - intentional murder and depraved indifference murder - were given to the jury.
In that case, where defendant had entered a barber shop and shot the victim ten times with one other person present, and the defendant's counsel specifically objected to the depraved indifference murder charge, the objection was denied by the trial court, but the Fourth Department reversed on the grounds of legally insufficient evidence. Id. at 871.
The appellate court held that the evidence demonstrated an intentional shooting, and the jury could not reasonably have found defendant's state of mind to be recklessness. Id. at 871-72.