
    The People of the State of New York, Respondent, v Steven D. Roe, a Juvenile Offender, Appellant.
    Argued March 28, 1989;
    decided June 6, 1989
    
      POINTS OF COUNSEL
    
      Joel Martin Aurnou for appellant.
    I. The evidence was insufficient as a matter of law to support the verdict. (People v Poplis, 30 NY2d 85; People v Gomez, 65 NY2d 9; People v Register, 60 NY2d 270; People v Fenner, 61 NY2d 971; People v Arzon, 92 Misc 2d 739; People v Jernatowski, 238 NY 188; People v Kibbe, 35 NY2d 407; People v Magliato, 110 AD2d 266; People v Stanfield, 36 NY2d 467; People v Montanez, 41 NY2d 53.) II. Trial errors denied defendant a fair trial. (People v Pabon, 96 AD2d 870; People v Shapiro, 50 NY2d 747; Gregory v United States, 369 F2d 85; People v Alling, 118 AD2d 960, 69 NY2d 637.) III. Impeachment use of defendant’s suppressed statement was error. (People v Harris, 25 NY2d 175, 401 US 222; People v Ward, 95 AD2d 351; Matter of Michelet P., 70 AD2d 68.) IV. The sentence was excessive.
    
      Carl A. Vergari, District Attorney (Bruce Edward Kelly and Maryanne Luciano of counsel), for respondent.
    I. Defendant’s guilt for the depraved mind murder of Darrin Seifert was proven by legally sufficient evidence, comprised of both direct and circumstantial proof, beyond all doubt. (People v Contes, 60 NY2d 620; People v Gomez, 65 NY2d 9; People v Register, 60 NY2d 270; People v Leonardo, 89 AD2d 214, 60 NY2d 683; People v McManus, 108 AD2d 474, 67 NY2d 541; People v Davis, 72 NY2d 32; People v Poplis, 30 NY2d 85; People v 
      
      Graham, 41 AD2d 226; People v Le Grand, 61 AD2d 815, 44 NY2d 737, 439 US 835.) II. Appellant’s presentment of two purported errors occurring in the trial court are not properly before this court. (People v Brown, 24 NY2d 168; People v D’Abate, 37 NY2d 922; People v Lombardi, 76 AD2d 891; People v Rodriguez, 107 AD2d 827; People v Lane, 56 NY2d 1; People v Lowe, 91 AD2d 1100; People v De Vyver, 89 AD2d 745; People v Moreno, 70 NY2d 403; People v Molineux, 168 NY 264; People v Henson, 33 NY2d 63; People v Sims, 110 AD2d 214; People v Band, 125 AD2d 683; People v Boose, 25 AD2d 606.) III. Appellant’s failure at the pretrial hearing to lodge any form of protest to the use of the suppressed statements at trial for impeachment purposes renders the instant claim unpreserved as a matter of law. (People v Martin, 50 NY2d 1029; People v Dancey, 57 NY2d 1033; People v West, 56 NY2d 662; People v Maerling, 64 NY2d 134; Mincey v Arizona, 437 US 385; Oregon v Hass, 420 US 714; People v Leonti, 18 NY2d 384.) IV. Appellant’s claim of excessive sentence is improperly before this court, requiring perfunctory rejection. (People v Jones, 39 NY2d 694; People v Broadie, 37 NY2d 100, 423 US 950.)
   OPINION OF THE COURT

Hancock, Jr., J.

In defendant’s appeal from his conviction for depraved indifference murder (Penal Law § 125.25 [2]) for the shooting death of a 13-year-old boy, the sole question we address is the legal sufficiency of the evidence. Defendant, a 15 Vi-year-old high school student, deliberately loaded a mix of "live” and "dummy” shells at random into the magazine of a 12-gauge shotgun. He pumped a shell into the firing chamber not knowing whether it was a "dummy” or a "live” round. He raised the gun to his shoulder and pointed it directly at the victim, Darrin Seifert, who was standing approximately 10 feet away. As he did so, he exclaimed "Let’s play Polish roulette” and asked "Who is first?”. When he pulled the trigger, the gun discharged sending a "live” round into Darrin’s chest. Darrin died as a result of the massive injuries.

Defendant was convicted after a bench trial and the Appellate Division unanimously affirmed, holding that the evidence was legally sufficient to establish defendant’s guilt. That court concluded, moreover, upon an exercise of its independent factual review power (CPL 470.15 [5]), that the verdict was not against the weight of the evidence. In defendant’s appeal, by permission of a Judge of this court (CPL 460.20 [2] [a] [i]), we address only the central legal issue presented: sufficiency of the proof — i.e., "whether 'after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt’ (Jackson v Virginia, 443 US 307, 319 [emphasis in original])” (People v Contes, 60 NY2d 620, 621). On our review of the record, we conclude, as did the Appellate Division, that the proof is legally sufficient. Accordingly, there should be an affirmance.

Preliminarily, it must be made clear that defendant does not challenge either the validity of Penal Law § 30.00 (2), or the soundness of the policy underlying the legislative judgment in making persons 13, 14, or 15 years of age criminally responsible as adults for murder in the second degree under Penal Law § 125.25 (1) and (2). Nor does he raise any question concerning the wisdom of the entirely distinct statutory scheme in classifying intentional murder, depraved indifference murder, and felony murder as the same crime — murder in the second degree (see, Penal Law § 125.25). Nevertheless, the dissenter expresses evident dissatisfaction with these legislative measures which, as interpreted, permit the "enormous penological regression” of charging, convicting and sentencing a 15 1/2-year-old defendant, as an adult, for murder in the second degree (dissenting opn, at 29; see also, id,., at 35-38). But whether the Legislature should have classified depraved indifference murder as murder in the second degree and whether it is proper that a person under the age of 16 be held accountable as an adult for this specific crime are questions which do not pertain to the legal issue actually presented to us: is the evidence in this record sufficient to support the verdict under the legislative enactments applicable to the crime in question?

Before analyzing the evidence and its legal sufficiency, a brief examination of the crime of depraved indifference murder and its elements is instructive. Depraved indifference murder, like reckless manslaughter (Penal Law § 125.15 [1]) is a nonintentional homicide. It differs from manslaughter, however, in that it must be shown that the actor’s reckless conduct is imminently dangerous and presents a grave risk of death; in manslaughter, the conduct need only present the lesser "substantial risk” of death (see, People v Register, 60 NY2d 270, 276; see also, People v Gomez, 65 NY2d 9, 11). Whether the lesser risk sufficient for manslaughter is elevated into the very substantial risk present in murder (see, LaFave & Scott, Criminal Law § 70, at 542) depends upon the wantonness of defendant’s acts — i.e., whether they were committed "[u]nder circumstances evincing a depraved indifference to human life” (Penal Law § 125.25 [2]). This is not a mens rea element which focuses "upon the subjective intent of the defendant, as it is with intentional murder (Penal Law, § 125.25, subd 1)”; rather it involves "an objective assessment of the degree of risk presented by defendant’s reckless conduct” (People v Register, supra, at 277; see, People v Gomez, supra, at 11).

The only culpable mental state required for murder under subdivision (2) of Penal Law § 125.25 (depraved indifference murder), we have made clear, is recklessness — the same mental state required for manslaughter, second degree, under subdivision (1) of Penal Law § 125.15 (see, People v Gomez, supra, at 11; People v Register, supra, at 278). In a trial for murder under Penal Law § 125.25 (2), proof of defendant’s subjective mental state is, of course, relevant to the element of recklessness, the basic element required for both manslaughter in the second degree and depraved indifference murder (see, Penal Law § 15.05 [3]). Evidence of the actor’s subjective mental state, however, is not pertinent to a determination of the additional element required for depraved indifference murder: whether the objective circumstances bearing on the nature of a defendant’s reckless conduct are such that the conduct creates a very substantial risk of death (see, People v Register, supra, at 276-277; People v Gomez, 65 NY2d 9, 11, supra).

Generally, the assessment of the objective circumstances evincing the actor’s "depraved indifference to human life”— i.e., those which elevate the risk to the gravity required for a murder conviction — is a qualitative judgment to be made by the trier of the facts (see, People v Register, supra, at 274-275; see also, People v Gomez, supra, at 12). If there is evidence which supports the jury’s determination, it is this court’s obligation to uphold the verdict (see, People v Contes, 60 NY2d 620, 621, supra). Examples of conduct which have been held sufficient to justify a jury’s finding of depraved indifference include: driving an automobile on a city sidewalk at excessive speeds and striking a pedestrian without applying the brakes (see, People v Gomez, supra, at 12); firing several bullets into a house (see, People v Jernatowski, 238 NY 188; see also, People v Register, supra); continually beating an infant over a five-day period (see, People v Poplis, 30 NY2d 85); and playing "Russian roulette” with one "live” shell in a six-cylinder gun (see, Commonwealth v Malone, 354 Pa 180, 47 A2d 445; 2 LaFave & Scott, Substantive Criminal Law § 7.4, at 202; see also, People v Jefferson, 748 P2d 1223, 1227 [Colo]; State v Boone, 294 Ore 630, 661 P2d 917, 920; Neitzel v State, 655 P2d 325 [Alaska]).

With this background, we turn to the issue before us, now more fully stated: whether, viewing the evidence in the light most favorable to the People, any rational trier of the fact could have concluded that the objective circumstances surrounding defendant’s reckless conduct so elevated the gravity of the risk created as to evince the depraved indifference to human life necessary to sustain the murder conviction (see, People v Contes, supra). A brief summary of the evidence is necessary.

On the afternoon of August 14, 1984, the day of the shooting, defendant was at his home in the Village of Buchanan, Westchester County. There is uncontraverted proof that defendant, who had completed his first year in high school, had an intense interest in and detailed knowledge of weapons, including firearms of various kinds. He was familiar with his father’s 12-gauge shotgun and, indeed, had cleaned it approximately 50 times. The cleaning process involved oiling the firing pin and pulling the trigger, using a "dummy” shell to avoid "dry firing” the weapon.

At approximately 3:00 p.m., Darrin and his friend, Dennis Bleakley, also a 13 year old, stopped by to await the arrival of Darrin’s older brother who was expected shortly. Defendant entertained the two boys by showing them his sawed-off shotgun, gravity knife, and Chuka sticks which he kept in a bag under his bed; he demonstrated how he assembled and disassembled the sawed-off shotgun.

Defendant then escorted Darrin and Dennis to his parents’ room where he took out his father’s 12-gauge shotgun. He asked Darrin to go back to his bedroom to get the five shotgun shells which were on the shelf. Defendant knew that three of these shells were "live” and two were "dummies”. He randomly loaded four of the five shells into the magazine and pumped the shotgun, thereby placing one shell in the firing chamber. Because he loaded the magazine without any regard to the order in which the shells were inserted, he did not know if he had chambered a "live” or "dummy” round.

It was at this point, according to Dennis’s testimony, that defendant raised the shotgun, pointed it directly at Darrin, and said "Let’s play Polish roulette. Who is first?” He pulled the trigger discharging a "live” round which struck the 82-pound Darrin at close range. The shot created a gaping wound in Darrin’s upper right chest, destroyed most of his shoulder, produced extensive damage to his lung, and eventually caused his death.

Defendant disputed this version of the incident. He testified that he had one foot on his parents’ bed and was resting the butt of the gun on his inner thigh with the barrel pointing up and away from the victim. While he was demonstrating how the gun worked, he claimed, his foot slipped and the shotgun became airborne momentarily. Defendant testified that when he attempted to catch the gun, the butt kicked up under his armpit and he accidentally hit the trigger and discharged the gun.

The evidence of the objective circumstances surrounding defendant’s point-blank discharge of the shotgun is, in our view, sufficient to support a finding of the very serious risk of death required for depraved indifference murder. Because the escalating factor — depraved indifference to human life — is based on an objective assessment of the circumstances surrounding the act of shooting and not the mens rea of the actor (see, People v Register, supra, at 276-277), the evidence stressed by the dissent concerning defendant’s mens rea — his emotional condition in the aftermath of the killing (see, dissenting opn, at 32, 33-34) — is beside the point. Also without relevance are the dissent’s references to defendant’s claimed ignorance concerning the order in which cartridges, once loaded in the magazine, would enter the firing chamber (see, dissenting opn, at 32, 33). Such lack of knowledge can make no difference when, as is concededly the case here, the shooter knowingly loaded the mix of "live” and "dummy” cartridges with no regard to the order of their insertion into the magazine.

The comparable case here is not that of a person, uneducated in use of weapons, who, while playing with a gun that he does not know is loaded, accidentally discharges it; rather, the apt analogy is a macabre game of chance where the victim’s fate — life or death — may be decreed by the flip of a coin or a roll of a die. It is no different where the odds are even that the shell pumped into the firing chamber of a 12-gauge shotgun is a "live” round, the gun is aimed at the victim standing close by, and the trigger is pulled (see, 2 LaFave & Scott, Substantive Criminal Law § 7.4, at 202 ["Russian roulette” with one "live” shell in a six-chamber gun is a classic example of depraved indifference murder]).

The sheer enormity of the act — putting another’s life at such grave peril in this fashion — is not diminished because the sponsor of the game is a youth of 15. As in Register, where bullets which might kill or seriously injure someone, or hit no one at all, were fired at random into a crowded bar, the imminent risk of death was present here. That in one case the gamble is that a bullet might not hit anyone and in the other that the gun might not fire is of no moment. In each case, the fact finder could properly conclude that the conduct was so wanton as to amount to depraved indifference to human life.

It is conceivable that another trier of fact hearing this evidence could have been persuaded to arrive at a different verdict. From the dissenter’s extensive discussion of the proof and the inferences he would draw therefrom, it is evident that he would have done. so. Our proper function on appeal, however, is vastly different from that of the prosecutor in determining which crimes to charge, that of the Judge or jury in hearing the evidence and making factual conclusions, or that of the Appellate Division in reviewing the facts and exercising, where it chooses, its interest of justice jurisdiction. We do not find facts or exercise such discretion. Our sole authority is to review legal questions such as the one considered here: whether the evidence was legally insufficient. As to this question, we have little difficulty in concluding that the unanimous Appellate Division correctly held that the evidence was sufficient to support the verdict.

Finally, we must comment briefly on the dissent’s observation, not raised by defendant, that juveniles, charged as adults under Penal Law § 30.00, are denied the same rights afforded adults (see, dissenting opn, at 38). This is just not so. A juvenile is entitled to the same lesser included offense charges as an adult (see, CPL 300.50 [5]). If he is convicted of only a lesser offense for which he is not criminally responsible by reason of infancy (see, Penal Law § 30.00), that conviction is vacated and replaced by a juvenile delinquency fact determination and the matter removed to Family Court (see, CPL 310.85 [3]; art 725). Thus, the statutory scheme does not create a "boomerang” which "catches [defendant] in a remarkable dual exception” (dissenting opn, at 37); and a 15 year old is not "in the practical play out, more disadvantaged than an accused adult” (id., at 38).

Defendant’s remaining contentions are either unpreserved or without merit. We note, however, that defendant’s convictions of the crimes charged in counts 2 through 6 of the indictment are not before us. Accordingly, the order of the Appellate Division should be affirmed.

Bellacosa, J.

(dissenting). I vote to reverse this conviction of a 15-year-old person for the highest degree of criminal homicidal responsibility — depraved indifference murder. The evidence adduced, the statutory scheme under which defendant was charged, and the legislative intent behind it do not support the disproportionate level of maximum blameworthiness imposed here. Moreover, this result finalizes the obliteration of the classical demarcation between murder and manslaughter in this State, not only for juvenile offenders but also for all adult accuseds. As former Chief Judge Breitel so trenchantly observed with respect to an analogous statutory scheme and concept: "[T]he appropriate use of affirmative defenses enlarges the ameliorative aspects of a statutory scheme for the punishment of crime, rather than the other way around — a shift from primitive mechanical classifications based on the bare antisocial act and its consequences, rather than on the nature of the offender and the conditions which produce some degree of excuse for his conduct, the mark of an advanced criminology” (see, People v Patterson, 39 NY2d 288, 306-307 [Breitel, Ch. J., concurring (emphasis added)], affd 432 US 197).

From common-law times to modern penal code days, the tragic incident at the heart of this case has qualified as the paradigmatic manslaughter with recklessness as the culpable mental state or mens rea. Indeed, until recently, persons under 16 years of age in this State were legal infants incapable of being convicted of any crime as an adult, no less of the prime, most heinous crime punishable under our law — murder. This case represents an enormous penological regression by combining the juvenile offender exception with the depraved indifference homicide exception and giving birth to this routinized homogeneous murder category.

One of the three definitions of murder in this State is recklessly engaging in conduct which creates a grave risk of death and causing the death of another under circumstances evincing a depraved indifference to human life (Penal Law § 125.25 [2]). That is the one at issue in this case. Manslaughter, second degree, is defined as recklessly causing the death of another person (Penal Law § 125.15 [1]). This court has held that both of those crimes (the first an "A-I” felony carrying a mandatory sentence of at least 15 years to life [Penal Law § 70.00], and the lesser being a "C” felony qualifying for 4 Vz to 15 years [Penal Law § 70.02]) require the same culpable mental state (People v Register, 60 NY2d 270, cert denied 466 US 953), i.e., acting recklessly when aware of and consciously disregarding a substantial and unjustifiable risk (Penal Law § 15.05 [3]). But that culpable mental state, taken alone, supports and defines only manslaughter unless elevated to murder by reckless conduct, which additionally creates a grave risk under circumstances evincing a depraved indifference to human life. The catapulting ingredients are gravity and depravity. Other synonyms used to try to understand the essence of the escalating difference include malignant, malicious, callous, cruel, wanton, unremorseful, reprehensible and the like. The semantics alone prove that the analysis necessarily includes some subjective, gradational assessment.

While the tangible content of "depraved indifference to human life” is thus elusive, the wantonness of the conduct augmenting the reckless culpable mental state must also manifest a level of callousness and extreme cruelty as to be "equal in blameworthiness to intentional murder” (People v Register, 60 NY2d 270, 275, cert denied 466 US 953, supra). I allude to some of the same case illustrations in this regard as the majority does, except I emphasize the particular escalating depravity facts that the majority avoids: firing a gun three times in a packed barroom, having boasted in advance an intention to kill someone (id.); driving a car at high speed on a crowded urban street and failing to apply the brakes after striking one person (People v Gomez, 65 NY2d 9); continuously beating a young child over a five-day period (People v Poplis, 30 NY2d 85).

The depraved indifference category of murder reflects the Legislature’s policy refinement that there is a type of reckless homicide that is so horrendous as to qualify, in a legal fiction way, for blameworthiness in the same degree as the taking of another’s life intentionally, purposefully and knowingly (see, Donnino, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law art 125, at 491; 2 LaFave & Scott, Substantive Criminal Law § 7.4). It is treated equally with the common-law antecedent of premeditated murder with malice aforethought. Early cases reveal that the concept of "depraved mind” murder as an escalating factor emerged from this common-law notion and was applied in cases where, despite evidence that a defendant had no desire to kill, the conduct nonetheless demonstrated a substitutive aggravating "malice in the sense of a wicked disposition” (see, Gegan, A Case of Depraved Mind Murder, 49 St John’s L Rev 417, 423-427). Modern statutes have borrowed and recast the concept "of a wicked disposition” to speak in terms of "extreme indifference to the value of human life”. The predecessor of New York’s present statute used an "act imminently dangerous to others” and was interpreted to apply, consistent with its exception-ability, only in cases where defendant’s conduct created a danger to a multitude of persons rather than to just one individual (see, 2 Rev Stat of NY, part IV, ch I, tit I, § 5 [1829] [emphasis added]; Darry v People, 10 NY 120 [1854]). The language of the statute was expanded in 1967 to apply to persons who engage in "conduct which creates a grave risk of death to another person” and has been construed to apply to an attack directed at a single person (see, Penal Law § 125.25 [2]; People v Poplis, 30 NY2d 85, supra).

The latest significant case, involving far more egregious conduct than is present in the instant case and held to constitute depraved indifference murder, evoked a warning, albeit in dissent, of the "evisceration” of the "distinction” between manslaughter and murder (People v Register, 60 NY2d 270, 284 [Jasen, J., dissenting], supra). In my view, today’s application completes the homogenization.

In this case, a 15-year-old person stands convicted of the tragic and senseless killing of the 13-year-old brother of his best friend. The shooting occurred around three o’clock in defendant’s home on a summer afternoon. Thirteen-year-old Darrin Seifert and another youngster, Dennis Bleakley, went to defendant’s home where they were invited to defendant’s upstairs bedroom. They examined defendant’s weapons collection, which included a sawed-off shotgun. After the weapons were returned to their storage places, defendant and his two companions walked down the hallway to defendant’s parents’ room where defendant removed a 12-gauge shotgun from a gun case. Defendant asked Darrin to retrieve some shotgun shells located on a shelf in defendant’s room. Darrin and Dennis went to defendant’s room and took five shells. Three were live ammunition and two were "dummies”. Returning to the master bedroom, Darrin handed the shells to defendant, who proceeded to load the shotgun with four shells. Testimony established that defendant knew two of the shells he loaded into the gun were "live” and two were "dummies”. There was also conflicting testimony as to whether the defendant understood that the gun worked in such a manner that the first shell inserted into the gun would be the last fired from the gun or vice versa. The two police investigators testified that, shortly after the incident, defendant indicated he thought he had chambered a "dummy” shell and appeared stunned when he learned the gun operated on a "first in — last out” order of fire. Defendant contradicted this testimony when he testified he had not paid attention to the order in which he loaded the shells into the gun. Both theories, in any event, suggest only recklessness, not depravity.

Moreover, after loading the gun and while standing 10 feet away from the other two boys, defendant exclaimed, "Let’s play Polish roulette. Who’s first?” Defendant raised the shotgun, pointed it at his two companions and pulled the trigger. The gun fired a live shell which hit Darrin’s right chest and shoulder area, knocking him to the floor. Defendant dropped the shotgun and ran over to Darrin, screaming, "Don’t die. I killed my best friend’s brother.” He quickly directed Dennis to go downstairs to call an ambulance, which was done. A neighbor, hearing the shot, entered the house and ran upstairs. She observed defendant straddled over Darrin’s body and heard him say, "Is he alright? Is he alright? Tell me.” When the police arrived shortly thereafter, they observed the defendant pounding his fists against the wall, crying, "I can’t believe I shot him. I can’t believe I shot my best friend. Help, please, oh my God, help.” The ambulance arrived and Darrin was taken to the hospital where he was pronounced dead on arrival.

The District Attorney presented the evidence to a Grand Jury and sought a depraved indifference murder charge against this defendant as a juvenile offender. The Grand Jury complied and a bench trial ensued after which the Trial Judge, as trier of fact, convicted on that top count. The question is whether defendant’s conduct "was of such gravity that it placed the crime upon the same level as the taking of life by premeditated design * * * [and whether] defendant’s conduct, though reckless, was equal in blameworthiness to intentional murder” (People v Register, 60 NY2d 270, 274-275, cert denied 466 US 953, supra).

I disagree that defendant’s conduct qualifies for this lofty homicidal standard. He acted recklessly, of that there can be no doubt. He could also have been punished proportionately as an adult criminal, of that, too, there should not be any doubt. But the accusation and the conviction at the highest homicidal level, predicated on callous depravity and complete indifference to human life, are not supportable against this 15 year old on a sufficiency review and are starkly contradicted by the whole of the evidence adduced.

This "crime is classified as murder and the murder penalty should be imposed 'only when the degree of risk approaches certainty; that is, at the point where reckless homicide becomes knowing homicide’ ” (People v Lilly, 71 AD2d 393, 398 [Simons, J., dissenting], quoting Gegan, A Case of Depraved Mind Murder, 49 St John’s L Rev 417, 447 [emphasis added]). Here, defendant’s actions cannot be said to have created an almost certain risk of death. The mathematical probabilities, the objective state of mind evidence at and around the critical moment, the ambiguity in the evidence as to the operational order in the firing of the weapon, and all the circumstances surrounding this tragic incident all render the risk uncertain and counterindicate depravity, callousness and indifference of the level fictionally equalling premeditated, intentional murder. That central and essential element of the crime charged was not proved beyond a reasonable doubt and that has been for a very long time a classically reviewable issue in this court (People v Ledwon, 153 NY 10).

I, of course, accept the truism, repeatedly cited by the majority as a justification for its conclusion, that the evidence must be viewed in the light most favorable to the People. But I do not worship that generality nor do I believe that it displaces equally pertinent principles and analysis; nor has it overruled other cogent and relevant precedents like Ledwon (supra). Besides, if this 15 year old is to live the rest of his life with the scarlet condemnation of "depraved murderer”, he is entitled to have the entire relevant evidentiary res gestae examined within the framework of this court’s traditional powers.

The testimony of the only other eyewitness, Dennis Bleakley, established that defendant was shaken and distraught immediately upon realizing that he had shot their companion. Defendant also immediately ran to his victim and instructed Dennis to call an ambulance; the neighbor testified that when she arrived on the scene, seconds after hearing the shot, defendant was kneeling over his friend’s body and crying. Similarly, the police officer who arrived on the scene testified that defendant was extremely distraught and overcome with grief. This is not evidence beyond a reasonable doubt of that hardness of heart or that malignancy of attitude qualifying as "depraved indifference” (see, People v Ledwon, 153 NY 10, supra). Frankly, the evidence proves the opposite.

Nor should evidence of the "objective circumstances surrounding the act of the shooting” — the essential elevating element of the crime — be discarded as "beside the point” and artificially cut off as of the moment of the flash of the weapon (majority opn, at 27). This is a substantial and new evidentiary restriction and one that has been rejected by a leading authority (2 LaFave & Scott, Substantive Criminal Law § 7.4, at 204-205). Indeed, the very section of that text relied upon by the majority is antithetical to the majority’s approach and supports the view advanced in this dissent in this regard (see, majority opn, at 27, n 7): "[o]n balance, it would seem that, to convict of murder, with its drastic personal consequences, subjective realization should be required”, and evidence of a defendant’s conduct in stopping and aiding a victim, whom he had struck and fatally injured, was admissible "to 'negative the idea of wickedness of disposition and hardness of heart’ required for depraved-heart murder” (see, 2 LaFave & Scott, Substantive Criminal Law § 7.4, at 205, citing Commonwealth v McLaughlin, 293 Pa 218, 142 A 213 [1928]). Under the majority’s cramped approach, one must wonder whether res gestae conduct will be foreclosed in a prosecution attempt to prove a real depravity set of circumstances in some other depraved murder case. More to the point here and for the defense side of cases yet to come, the majority appears also to be significantly preventing the evidentiary development of ameliorating or contradicting factors with respect to depravity. Both sides and the truth-seeking process itself lose with this antiseptic evidentiary embargo.

On an inextricably related issue, the majority also summarily rejects the defendant’s objection to the prosecutor’s use of prejudicial prior conduct evidence. To establish defendant’s depravity, the People introduced evidence that defendant had previously pointed an unloaded firearm at others, that he had handled a variety of guns and demonstrated to his friends how to load and unload these guns. They even introduced defendant’s magazines concerning guns and the posters that had hung in his bedroom. Evidence of this conduct, of this penchant, of this hobby, and of these prior "bad acts” never should have been admitted because the probative value was nonexistent or so overwhelmingly prejudicial that the tenuous probativeness was substantially outweighed (People v Hudy, 73 NY2d 40, 54-56; People v Ventimiglia, 52 NY2d 350; People v Molineux, 168 NY 264). The Trial Judge nonetheless took the evidence over objection, stating that it bore on defendant’s familiarity with guns and tended to establish defendant’s depraved mind — and he was the sole fact finder. As to the first issue — defendant’s familiarity with guns — the evidence totally failed to show that defendant knew the order of fire of the weapon used that afternoon — the only relevant issue in this regard in the case. As to the second issue — establishing this 15-year-old’s depraved mind — the evidence of defendant’s prior acts as related to the charged event is not relevant to show defendant’s state of mind on the afternoon in question and was inappropriately devastating in its impact (see, United States v Afjehei, 869 F2d 670 [2d Cir]). If the truth be stated, we know that this evidence was admitted for only one purpose: the prosecutor’s determination to show that this 15 year old was obsessed with firearms rather than with other things which preoccupy such adolescents. This is precisely why admitting this highly prejudicial evidence constitutes reversible error (People v Ailing, 118 AD2d 960, 963-964 [dissenting opn], revd on dissenting opn 69 NY2d 637).

By condoning all this error and thus catapulting the defendant’s admittedly reckless criminal act to one "evincing depraved indifference to human life”, the court functionally and finally discards and disregards the legislatively drawn distinction between manslaughter and murder (see, People v Register, 60 NY2d 270, 284 [dissenting opn], supra; Gegan, A Case of Depraved Mind Murder, 49 St John’s L Rev 417, 447; see also, People v Marcy, 628 P2d 69, 78-81 [Colo]). Prosecutors will find the temptation legally and strategically irresistible, and overcharging traditional reckless manslaughter conduct as the more serious murderous conduct will become standard operating procedure in view of the authorized template given for that course of action. Some very disproportionate miscarriages of justice — this case is one of them — will certainly ensue from this prosecutorial leverage in elevating reckless manslaughter to murder. It is difficult to imagine, after this case, any intentional murder situation not being presented to the Grand Jury with a District Attorney’s request for a depraved indifference murder count as well. Thus, the exception designed as a special fictional and functional equivalent to intentional murder becomes an automatic alternative and additional top count accusation, carrying significant prejudicial baggage in its terminology alone. That devastating advantage, among others, given to the prosecution provides an unjust double opportunity for a top count murder conviction and an almost certain fallback for conviction on the lesser included crime of manslaughter.

The majority also postulates a functional per se principle for this type case that it is always — it says "generally” but provides no indication of qualifying exceptions and I can think of none — up to the trier of fact only to determine whether defendant’s actions were of such gravity as to qualify for depraved indifference murder (majority opn, at 25). This remarkable abdication of traditional demurrer and legitimate appellate review functions to unfettered prosecutorial hegemony has very grave consequences and implications for the future. If all prosecutors have to do to secure a depraved indifference murder count from their generally cooperative Grand Juries is to present the meager evidence available here against a juvenile offender, there is not much left for the defense or the trial court to do. Under CPL 210.20 (1) (b), the entire case becomes invulnerable to dismissal because the lesser manslaughter, second degree, with simple recklessness will surely lie and the court in such circumstances is absolutely forbidden from dismissing the higher count, even if not made out by the evidence. The inspect and reduce reform long sought as a fair and balanced judicial remedy for such situations generally, which would ameliorate this outrageous strategic advantage in cases like this, has year after year failed because of prosecutorial opposition (see, Assembly Bill 5110 [1989]; Assembly Bill 4459 [1987-1988]; Assembly Bill 4337 [1986]; see also, 1988 Rep of Advisory Comm on Criminal Law & Procedure, reprinted in 1988 McKinney’s Session Laws of NY, at 2369, 2430; Determinate Sentencing Report and Recommendation, NYS Comm on Sentencing Guidelines, at 97 [1985]). To this long-standing advantage, there is now added the unique fact-insulating characterization accorded to the essential aggravating element in these cases with the result that the prosecution’s discretionary authority in this respect is decreed absolute and immune from appropriate review.

As if all that were not disquieting enough, under the particular facts of this case, the conviction of this 15-year-old defendant for depraved indifference murder becomes even more unsettling because, prior to 1978, persons under the age of 16 were infants, legally presumed to be without capacity to commit any crime as an adult. Children under the age of 16, proven to have committed an act which if committed by an adult would be a crime, were up to then adjudicated juvenile delinquents in Family Court (see, Family Ct Act art 3). In 1978, the Governor and Legislature, reacting to a particularly heinous criminal act by someone who would qualify only as a juvenile delinquent, carved out some narrow high level adult prosecution exceptions to the traditional infancy defense. After that date, persons aged 13 through 15 could be criminally responsible as adults for intentional and depraved indifference murder. Additionally, under the same statute, 14 and 15 year olds could be held criminally responsible for some other enumerated felonies and for felony murder only if one of the underlying intent felonies were among those enumerated in the special statute (see, Penal Law § 30.00 [2]; McQuillan, Felony Murder and The Juvenile Offender, NYLJ, Aug. 25, 1978, at 1, col 2). Notably, every crime, save one, authorized for prosecution against these 13 to 15 year olds requires intention as the culpable mental state. That one exception is depraved indifference murder, which carries the lesser culpable mental state of recklessness.

The majority avoids these objective realities and the inextricably intertwined statute, which could not be more self-evidently relevant to this adolescent defendant, even in the title of this criminal proceeding, by attributing to me a sua sponte injection of the issue into the case. They even imply that I question the wisdom of the Legislature’s policy choice in enacting the juvenile offender law, which I surely do not. I question the injustice against this defendant in the application of that exceptional authorization for this depraved indifference case, within the framework of this court’s traditional review role (People v Gruttola, 43 NY2d 116, 122-123; People v Ledwon, 153 NY 10, supra). The notion that our review power should be so "scientific” and "mechanical” should be repulsed (see, Brennan, Reason, Passion, and "The Progress of the Law”, 42 Rec AB City NY 948, 951-952 [1987]).

The boomerang of Penal Law § 30.00 (2) on this adolescent defendant catches him in a remarkable dual exception — a kind of double bind — creating an opposite anomaly from that which precipitated the juvenile offender legislation — the escape of then-juvenile delinquent Willie Bosket from the

clutches of the adult criminal law (see, L 1978, ch 481; NY Times, July 20, 1978, at B2, col 6; NY Times, Nov. 17, 1979, at 27, col 1). Defendant Steven Roe, aged 15, standing alongside an adult-aged criminal over 16, is, in the practical play out, more disadvantaged than an accused adult by quirks of legislative drafting and of prosecutorial charging choices (see, e.g., CPL 300.50, 310.85; Penal Law § 30.00 [2]; § 125.25 [1] [a]; but see, ALI Model Penal Code §§210.2, 210.3 [1] [b]; Donnino, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law art 125, at 492; People v Patterson, 39 NY2d 288, 306-307 [Breitel, Ch. J., concurring], affd 432 US 197, supra). This harsh reality perverts the principle of proportionality in our criminal jurisprudence and exerts the worst kind of regressive inversion on the equal protection of our laws applied as against a 15-year-old defendant charged, tried, convicted and punished as a full adult for the highest crime possible.

Finally, to uphold this defendant’s conviction on the uppermost and most heinous level of criminal homicidal responsibility cheapens the gravity with which we treat far more serious murders, e.g., cold-blooded contract killings and the like. In the eyes of the law all the slayers are now made alike, when the perpetrators themselves know and our best instincts and intelligence tell us, too, that they are very different. Justice is disfigured by the punishment of offenders so homogeneously and, yet, so disproportionately.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander and Titone concur with Judge Hancock, Jr.; Judge Bellacosa dissents and votes to reverse in a separate opinion.

Order affirmed. 
      
      . Penal Law "§ 125.25 Murder in the second degree.
      "A person is guilty of murder in the second degree when:
      * ** *
      "2. Under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person”.
     
      
      . The statute also provides that persons 14 or 15 years of age who commit certain crimes — e.g., first degree manslaughter, first degree rape, aggravated sexual abuse, and first degree kidnapping — may be tried as adults. Thus, contrary to the assertion of the dissent, the law was not tailored solely to prevent those exceptionally vicious juveniles, such as Willie Bosket, from escaping "the clutches of the adult criminal law” (dissenting opn, at 37-38). Rather, it applies to all 14 or 15 year olds who commit any one of the broad range of crimes enumerated in the statute.
     
      
      . Nor does defendant raise any issue involving the sufficiency of the evidence before the Grand Jury or the discretionary prosecutorial decision to present a Penal Law § 125.25 (2) charge to the Grand Jury and the trier of fact (cf., dissenting opn, at 35-36, 36).
     
      
      . In attempting to "emphasize the particular escalating depravity facts” in Gomez (dissenting opn, at 30), the dissent overlooks the fact that in Gomez we upheld two counts of depraved indifference murder — one for the first victim struck and one for the second (65 NY2d 9, 12). Thus, we obviously did not find it necessary that one person be struck first for the conduct to constitute depraved indifference.
     
      
      . In addition to proof that defendant had handled and used his sawed-off shotgun and his father’s shotgun, the People introduced evidence that defendant had previously used a .22-caliber rifle, an air rifle, a .22-caliber air pistol, and a BB gun. Defendant had read magazine articles and books concerning guns, given several speeches in school about weapons, and drawn pictures of various guns. This evidence was admissible to prove recklessness —i.e., that defendant was aware of the risks involved — by showing that he was familiar with weapons in general and with this gun in particular (see, People v Licitra, 47 NY2d 554, 559; People v Stanfield, 36 NY2d 467, 471-472).
     
      
      . According to defendant, "dry firing” is releasing the firing pin when there is no cartridge in the chamber and nothing for the pin to strike against. To avoid the damage to the pin which "dry firing” can cause, "dummy” cartridges are used.
     
      
      . 2 LaFave & Scott, Substantive Criminal Law § 7.4 (b), at 204-205, cited by the dissent (see, dissenting opn, at 34) is not to the contrary. Evidence of defendant’s conduct and emotional state after the shooting might be relevant to show his subjective awareness of the risk — an element essential to establish the underlying mens rea of recklessness (see, Penal Law § 15.05 [3]; 2 LaFave & Scott, op. cit., at 204-205). Here, however, there is no dispute that defendant acted recklessly (see, dissenting opn, at 33). The only question is whether the crime conduct creates the very substantial risk of death necessary for depraved indifference. Gomez and Register make it clear that this element is to be objectively assessed and that defendant’s subjective mens rea is not relevant on this point (People v Gomez, 69 NY2d 9, 11; People v Register, 60 NY2d 270, 277).
     