May a verdict of depraved murder serve as a substitute for evidence of the crime of intentional murder, PL 125.25(1)?

The distinction between depraved murder, PL 125.25(2) and that of intentional murder is separated by a fine if not meandering line. This is particularly true where trial evidence reveals that the accused shot the deceased more than once at close range.

When presented with both theories of murder in the required alternative, a jury will more likely than not vote to convict upon the depraved murder, if only because it sounds like some lesser offense, which, of course, it is not. See, People v. Roe, 74 NY2d 32. Depraved murder is defined as acting `... recklessly engages in conduct which creates a grave risk of death ...' Thus, a defendant who fires a gun into a crowd or …