People v. Brammer
| Decision Date | 25 January 1993 |
| Citation | 189 A.D.2d 885,592 N.Y.S.2d 761 |
| Parties | The PEOPLE, etc., Respondent, v. Joseph BRAMMER, Jr., a/k/a "Tex", Appellant. |
| Court | New York Supreme Court — Appellate Division |
Gary E. Eisenberg, Monroe, for appellant.
William V. Grady, Dist. Atty., Poughkeepsie (Alfred T. Tallakson, of counsel), for respondent.
Before SULLIVAN, J.P., and MILLER, RITTER and PIZZUTO, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the County Court, Dutchess County (Hillery, J.), rendered September 28, 1989, 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 single-count indictment amplified by the amended bill of particulars was duplicitous inasmuch as it charged him with the commission of multiple crimes (see, CPL 200.30; 200.50[3], has not been preserved for appellate review (see, CPL 470.05[2]; People v. Palmer, 184 A.D.2d 534, 586 N.Y.S.2d 754; People v. Lopez, 175 A.D.2d 267, 268, 572 N.Y.S.2d 378; People v. Barrett, 166 A.D.2d 657, 658, 561 N.Y.S.2d 465). In any event, this claim is without merit. Although the amended bill of particulars asserted that two courses of conduct, i.e., a series of assaults and failure to obtain medical care, caused the death of the 3-month-old infant, this conduct was all part of the same incident on October 7, 1988. Depraved indifference murder, as defined in Penal Law § 125.25(2), does not necessarily contemplate the performance of a single act but, rather, is a crime that by its nature may be committed by one act or by multiple acts and thus, readily permits characterization as a continuing offense (see, People v. Ribowsky, 77 N.Y.2d 284, 289, 567 N.Y.S.2d 392, 568 N.E.2d 1197; People v. Keindl, 68 N.Y.2d 410, 509 N.Y.S.2d 790, 502 N.E.2d 577). Therefore, we find that the indictment, which permitted the jury to find the defendant guilty of depraved indifference murder upon a combination of acts or in one of two alternative ways, was proper (see, People v. Keindl, supra, at 421, 509 N.Y.S.2d 790, 502 N.E.2d 577; see also, People v. Wong, 182 A.D.2d 98, 588 N.Y.S.2d 119).
Viewing the evidence in the light most favorable to the People (see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Indeed, the evidence, including evidence that the defendant hit, threw,...
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