People v. Gomez

• Decision Date: 30 April 1985
• Citation: 65 N.Y.2d 9,489 N.Y.S.2d 156
• Parties: , 478 N.E.2d 759 The PEOPLE of the State of New York, Respondent, v. Alfredo GOMEZ, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 156

489 N.Y.S.2d 156

65 N.Y.2d 9, 478 N.E.2d 759

The PEOPLE of the State of New York, Respondent, v. Alfredo GOMEZ, Appellant.

Court of Appeals of New York.

April 30, 1985.

Ellen M. Saideman and William E. Hellerstein, New York City, for appellant.

Robert M. Morgenthau, Dist. Atty., New York City (Susan Corkery and Amyjane Rettew, New York City, of counsel), for respondent.

OPINION OF THE COURT

PER CURIAM.

Defendant appeals from an order of the Appellate Division, 104 A.D.2d 303, 478 N.Y.S.2d 638, affirming his conviction of two counts of murder in the second degree (Penal Law § 125.25) and four counts of reckless endangerment in the first degree (Penal Law § 120.25). The charges arose out of an incident in which defendant drove his car several blocks on a busy New York City street and the sidewalks adjacent to it, killing two children and endangering the lives of several pedestrians. Defendant's only contention on this appeal is that the evidence was insufficient to support the convictions of depraved mind murder.

Inasmuch as the Appellate Division affirmed the jury's guilty verdict, we must view the evidence in the light most favorable to the People (see, People v. Pena, 50 N.Y.2d 400, 407, 429 N.Y.S.2d 410, 406 N.E.2d 1347, cert. denied 449 U.S. 1087, 101 S.Ct. 878, 66 L.Ed.2d 814). So viewed, it established that sometime between 7:30 and 8:00 p.m. on July 7, 1981, defendant drove a car, owned by Americo Junco, out of a gas station located on the west side of 10th Avenue at 45th Street in Manhattan and entered 10th Avenue at a speed of approximately 40 miles an hour. He then accelerated across 10th Avenue, struck and careened off a parked car and continued traveling north, weaving from lane to lane. As he did so, he struck the left side of a moving vehicle, accelerated to over 50 miles an hour, and mounted the curb of the sidewalk adjacent to a parking lot entrance south of the southwest corner of 46th Street. He then drove the car along the sidewalk at a high rate of speed and struck a boy riding his bicycle, Daniel Calibar, throwing him completely across 46th Street. An occupant of the car testified that at that point he told defendant to apply the brakes, but defendant responded: "No I cannot brake, I cannot put the brakes on any longer. I have killed a person already."

Defendant then accelerated his speed further, crossed 46th Street and mounted the opposite sidewalk where several people were standing. He drove up the block on the sidewalk, striking another child riding a bicycle, Rene Mercado, near the corner of 47th Street, and dragging his body approximately 80 feet. Junco's vehicle then crossed 47th Street and mounted the curb on the northwest corner. He again sped along the sidewalk at over 50 miles an hour nearly striking several people standing along 48th Street until defendant braked for the first time and the car came to rest. After the car stopped, defendant attempted to escape but he was apprehended and arrested.

After a jury trial, defendant was convicted and sentenced to two consecutive indeterminate terms of imprisonment of 25 years to life on the murder counts and four concurrent indeterminate terms of imprisonment of two and one-third to seven years on the reckless endangerment counts. On appeal, the Appellate Division modified the sentences by ordering that the terms imposed on the two murder counts run concurrently to each other and to the four concurrent terms on the reckless endangerment counts. It also upheld the jury's finding of guilt, stating that the proof was sufficient to establish that defendant acted with depraved indifference to life. One Justice dissented. He would have reduced the sentences on the murder counts further to 15 years to life on each count to run...