2 No. 116
The People &c.,
Respondent,
v.
Jose Lynch,
Appellant.
_________________________________________________________________
2000 NY Int. 112
October 24, 2000
This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Joshua M. Levine, for appellant.
Rona I. Kugler, for respondent.
_________________________________________________________________
KAYE, CHIEF JUDGE:
The main issue in this case concerns whether there was legally
sufficient evidence of depraved indifference to support defendant's
conviction of first degree reckless endangerment.
The complainant, Eric Diaz, was walking with his girlfriend and her
sister past a Halloween party in Queens when he was accosted by
defendant and several other men. Pointing to his own eyes and to
Diaz's, defendant said, "You like to look with your eyes?" and then
turned a beer bottle upside down as if to use it as a weapon. Although
Diaz tried to retreat, defendant and the others cornered him against a
parked car and began assaulting him. During the altercation, defendant
stabbed Diaz in the back of the neck with a three-inch metal object,
seriously injuring his spinal column. Diaz fell to the ground and lay
bleeding and motionless as defendant and the other assailants kicked
him in the chest, ribs and legs, and stomped on his face. Diaz's
girlfriend pleaded for them to stop, but defendant (or one of his
accomplices) refused, exclaiming that he was getting his "kicks in."
Finally, an accomplice threw a discarded computer at Diaz's head
before the attackers fled.
Later that evening, defendant was arrested and admitted to a New York
City Police detective that he had picked up something from the ground
and stabbed Diaz in the back in self- defense. Diaz was hospitalized
for nearly a month and treated for debilitating injuries. At the time
of trial, eight months later, Diaz still suffered paralysis and memory
SNIPPETS:
The main issue in this case concerns whether there was legally sufficient evidence of
The complainant, Eric Diaz, was walking with his girlfriend and her sister past a Halloween
defendant was arrested and admitted to a New York City Police detective that he had picked up
A jury convicted defendant, acting in concert, of second degree assault, first degree
As the People conceded on appeal, the evidence was legally insufficient to support the second
the Appellate Division affirmed the conviction and remitted the case to Supreme Court for
A Judge of this Court granted leave to appeal.
We now affirm.
The standard of review is well settled: we review the evidence in a light most favorable to
Depraved indifference requires proof "that the actor's reckless conduct is imminently
courts must review the sufficiency of the evidence in light of the law on which the jury was
As the dissent correctly points out, the two potential jurors -- an avowed pacifist who would
Defendant should not have had to use two of his peremptory challenges, as he did, to remove
However, erroneous denial of a challenge for cause "does not constitute reversible error
"THE COURT CLERK:
After the questioning of the twelfth prospective juror,
" In that defendant failed to exhaust his peremptory challenges, the statutory criteria for
The trial court denied two of the defendant's challenges for cause of prospective jurors who
the first prospective juror expressly stated that the nature of complainant's injuries would
BYRNE: Yes.
Defendant argues that no additional challenge was given when, after questioning of an
Judge Smith dissents and votes to reverse in an opinion.
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