People v Tittle

People v Tittle 2018 NY Slip Op 02756 Decided on April 24, 2018 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 24, 2018
Sweeny, J.P., Richter, Webber, Gesmer, Moulton, JJ.
1140/14 6362

[*1]The People of the State of New York, Respondent,

v

Marcus Tittle, Defendant-Appellant.

Robert S. Dean, Center for Appellate Litigation, New York (Megan D. Byrne of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Joshua P. Weiss of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Nicholas Iacovetta, J.), rendered February 25, 2015, as amended July 13, 2017, convicting defendant, upon his plea of guilty, of assault in the first degree, and sentencing him to a term of 14 years, unanimously affirmed.

The record establishes the voluntariness of defendant's plea. Defendant expressly admitted all the elements of first-degree assault under a theory of depraved indifference to human life. He then acknowledged the truth of the account of the incident that he had given to the police. That statement described a gross misuse of a loaded firearm that would support, at least by inference (see People v McGowen , 42 NY2d 905 [1977]), the element of depraved indifference (see People v Roe , 74 NY2d 20, 22-23 [1989]). The issue of whether the facts contained in defendant's statement constituted legally sufficient evidence to support a trial conviction is not before us. In any event, defendant's statement cannot be said to have negated depraved indifference so as to require further inquiry by the court.

Regardless of whether defendant made a valid waiver of his right to appeal, we perceive no basis for reducing the sentence.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 24, 2018

CLERK