
    [693 NE2d 193, 670 NYS2d 166]
    The People of the State of New York, Respondent, v Jermaine Russell, Appellant. The People of the State of New York, Respondent, v Khary Bekka, Appellant. The People of the State of New York, Respondent, v Shamel Burroughs, Appellant.
    Argued January 7, 1998;
    decided February 11, 1998
    
      POINTS OF COUNSEL
    
      Robert J. Ellis, Jr., New York City, for appellant in the first above-entitled action.
    I. Where a prosecutor has provided a summation to a jury which comments upon the accused’s post-arrest silence, contains vouching, false statements of law and fact, allusions to "motives to lie”, argues facts not in evidence, commits burden shifting, propounds incorrect statements of law, disregards the trial court’s rulings made during the summation, mischaracterizes the evidence and otherwise committed prosecutorial misconduct in summation in a persistent and flagrant manner, and trial counsel objected to the summation and made a motion for a mistrial as well as a motion to set aside the verdict, appellant was denied his right to a fair trial and due process as guaranteed by the State and Federal Constitutions. (People v Galloway, 54 NY2d 396; People v Johnson, 163 Misc 2d 256; People v Sabbat, 159 Misc 2d 725; People v May, 9 AD2d 508; People v Davis, 29 AD2d 556; People v Figueroa, 38 AD2d 595; People v Roman, 150 AD2d 252; People v Dowell, 88 AD2d 239; People v Stewart, 92 AD2d 226; People v Petrucelli, 44 AD2d 58.) II. Where appellant did not share any community of purpose with one who was attempting to kill or injure him, and where the prosecution failed to either disprove the theory of self-defense beyond a reasonable doubt or to exclude every reasonable hypothesis other than appellant’s intent to assist the prime mover, the application of the doctrine of accomplice liability by the trial court was illegal such that it constituted reversible error. (People v Flayhart, 72 NY2d 737; People v Sabbat, 159 Misc 2d 725; People v Kaplan, 76 NY2d 140; People v Brathwaite, 63 NY2d 839; People v Johnson, 163 Misc 2d 256; People v La Belle, 18 NY2d 405; People v Fabian, 154 Misc 2d 957; People v Abbott, 84 AD2d 11; People v Flayhart, 72 NY2d 737; People v Lieberman, 3 NY2d 649.) III. Where the general nature of the conflict and the evidence, viewed in the light most favorable to the prosecution, did not constitute depraved indifference homicide as a matter of law, the indictment must be dismissed or appellant’s conviction must be reduced to reckless manslaughter, a lesser included offense. (People v Register, 60 NY2d 270, 466 US 953; People v Lemus, 181 AD2d 609; People v Valdez, 170 AD2d 190; People v Brathwaite, 63 NY2d 839; People v Allah, 71 NY2d 830; People v Leonardo, 89 AD2d 214; People v Ramos, 20 AD2d 882; People v May, 9 AD2d 508; People v Asaro, 182 AD2d 823.) IV. Where a court officer was a privotal witness at trial and pointedly testified concerning alleged inculpatory statements made by appellant, and the defense had made a request to have the jury specifically instructed concerning the credibility and testimony of court officers per 1 CJI(NY) 7.08, the failure to so instruct the jury violated appellant’s right to a fair trial and due process where defense counsel specifically objected to the court’s refusal to so charge. (People v Pegeise, 195 AD2d 337; People v McCain, 177 AD2d 513; People v Pascullo, 120 AD2d 687.) V. Where appellant, then an 18-year-old boy, was placed in lineups with fillers who, on average, were 30 years old, weighed substantially more than appellant, and appeared to be middle-aged adult men, the lineups conducted were either suggestive or unreliable as a matter of law, thereby violating appellant’s right to due process under the State and Federal Constitutions. (People v Simpson, 174 AD2d 348.)
    
      Charles J Hynes, District Attorney of Kings County, Brooklyn (Jane S. Meyers, Roseann B. MacKechnie and Anne C. Feigus of counsel), for respondent in the first above-entitled action.
    I. Defendant’s claim that the prosecutor made improper comments on summation is only partially preserved for review by this Court. Moreover, the summation was entirely proper. (People v Ashwal, 39 NY2d 105; People v Bailey, 58 NY2d 272; People v Arce, 42 NY2d 179; People v Marks, 6 NY2d 67, 362 US 912; People v Utley, 45 NY2d 908; People v Galloway, 54 NY2d 396; People v Berg, 59 NY2d 294; People v Crimmins, 36 NY2d 230; People v Roopchand, 107 AD2d 35, 65 NY2d 837; People v Balls, 69 NY2d 641.) II. The evidence was legally sufficient to support the jury’s finding that defendant was acting in concert with his companion, Khary Bekka, and with his adversary, Shamel Burroughs. (People v Contes, 60 NY2d 620; People v Ricardo B., 73 NY2d 228; People v Flayhart, 72 NY2d 737; People v Abbott, 84 AD2d 11; People v Fabian, 154 Misc 2d 957; People v Kaplan, 76 NY2d 140; People v Morhouse, 21 NY2d 66.) III. Defendant did not preserve his claim that the evidence was legally insufficient to show that his reckless conduct occurred "under circumstances evincing a depraved indifference to human life.” In any event, the evidence overwhelmingly supported his conviction for depraved indifference murder. (People v MacDonald, 89 NY2d 908; People v Gray, 86 NY2d 10; People v Bynum, 70 NY2d 858; People v Wong, 81 NY2d 600; People v Bleakley, 69 NY2d 490; People v Contes, 60 NY2d 620; People v Register, 60 NY2d 270, 466 US 953; People v Roe, 74 NY2d 20; People v Gomez, 65 NY2d 9; People v Fenner, 61 NY2d 971.) IV. The trial court correctly refused defendant’s request for a separate instruction on the evaluation of a court officer’s testimony. In any event, error, if any, was harmless because the court’s charge as a whole conveyed the correct legal standard for assessing witness credibility. (People v Canty, 60 NY2d 830; People v Woods, 41 NY2d 279; Parker v Gladden, 385 US 363; People v McCain, 177 AD2d 513; People v Pascullo, 120 AD2d 687.) V. Because the hearing court’s ruling that refused to suppress identification evidence is amply supported by the record and is not erroneous as a matter of law, it is beyond the scope of review of the Court of Appeals. In any event, the lineup was proper. (People v Chipp, 75 NY2d 327, 498 US 833; Neil v Biggers, 409 US 188; People v Adams, 53 NY2d 241.)
    
      Florence M. Kerner, Huntington, for appellant in the second above-entitled action.
    I. Where the only witness who saw the entire incident and all three shooters indicated that Burroughs shot at appellant first, (a) the People failed to disprove beyond a reasonable doubt the defense of justification; or, in the alternative, (b) the evidence was insufficient to prove depraved indifference murder, and, at most, established reckless manslaughter. (People v Goetz, 68 NY2d 96; People v Fenner, 61 NY2d 971; People v Northrup, 83 AD2d 737; People v Asaro, 182 AD2d 823; People v Thacker, 166 AD2d 102; People v Gomez, 65 NY2d 9.) II. The evidence was insufficient as a matter of law to establish that appellant was acting in concert with someone who had shot at him. (People v Allah, 71 NY2d 830; People v Armistead, 178 AD2d 607; People v Brathwaite, 63 NY2d 39; People v Abbott, 84 AD2d 11; People v Ricardo B., 73 NY2d 228.) III. Appellant was denied a fair trial by the prosecutor’s summation wherein he mischaracterized the evidence, shifted the burden of proof, vouched for his witnesses and repeatedly employed inflammatory language. (People v Ashwal, 39 NY2d 105; People v Lantigua, 228 AD2d 213; People v Ramos, 205 AD2d 404; People v Ferguson, 82 NY2d 837; People v Dunn, 158 AD2d 941; People v Dombrowski, 163 AD2d 873; People v Torres, 182 AD2d 461; People v Mott, 94 AD2d 415; United States v Valentine, 820 F2d 565.) IV. Where all of the fillers at the lineup were 10 to 15 years older than this 18-year-old appellant, the lineup was unduly suggestive as a matter of law. (People v Chipp, 75 NY2d 327, 498 US 833; Manson v Brathwaite, 432 US 98; People v Rahming, 26 NY2d 411; People v Fisher, 143 AD2d 1037; People v Gonzalez, 173 AD2d 48; People v Bryan, 228 AD2d 244; United States v Wade, 388 US 218.) V. The court erred by permitting the introduction, over objection, of the testimony of a court officer regarding a statement of appellant and codefendant Russell. (People v Watson, 213 AD2d 996; People v Herrera, 136 AD2d 567.) VI. The court’s charge, which highlighted the testimony of one of the People’s witnesses, objected to by appellant, deprived appellant of a fair trial. (People v Williamson, 40 NY2d 1073.)
    
      Charles J. Hynes, District Attorney of Kings County, Brooklyn (Jane S. Meyers, Roseann B. MacKechnie and Anne C. Feigns of counsel), for respondent in the second above-entitled action.
    I. Defendant has not preserved for this Court’s review any of his claims relating to the legal sufficiency of the evidence presented at his trial. In any event, the proof at trial was sufficient to disprove defendant’s justification defense beyond a reasonable doubt and to establish that he committed all elements of the crime of depraved indifference murder while acting in concert with Jermaine Russell and Shamel Burroughs. (People v MacDonald, 89 NY2d 908; People v Gray, 86 NY2d 10; People v Bynum, 70 NY2d 858; People v McManus, 67 NY2d 541; People v King, 186 AD2d 683; People v Cardona, 136 AD2d 556; People v Flores, 84 NY2d 957; People v Padro, 75 NY2d 820; Matter of Y. K., 87 NY2d 430.) II. Defendant’s claim that the prosecutor made improper comments on summation is only partially preserved for review by this Court. Moreover, the summation was proper. (People v Utley, 45 NY2d 908; People v Arce, 42 NY2d 179; People v Marks, 6 NY2d 67, 362 US 912; People v Ashwal, 39 NY2d 105; People v Bailey, 58 NY2d 272; People v Savage, 50 NY2d 673, 449 US 1016; People v Berg, 59 NY2d 294; People v Crimmins, 36 NY2d 230; People v Buckley, 75 NY2d 843; People v Balls, 69 NY2d 641.) III. Because the hearing court’s ruling that refused to suppress identification evidence was amply supported by the record and was not erroneous as a matter of law, it is beyond the scope of review of the Court of Appeals. In any event, the lineup was proper. (People v Chipp, 75 NY2d 327, 498 US 833; Neil v Biggers, 409 US 188; People v Adams, 53 NY2d 241.) IV. The trial court correctly permitted Court Officer Vitucci to testify about defendant’s admissions. (People v Ross, 21 NY2d 258; People v Colavito, 87 NY2d 423; People v DaGata, 86 NY2d 40; People v English, 73 NY2d 20; People v Ronald W., 24 NY2d 732; People v Howard, 87 NY2d 940; People v Washington, 86 NY2d 189; People v Flynn, 79 NY2d 879; People v Dory, 59 NY2d 121; People v Copicotto, 50 NY2d 222.) V. The trial court did not marshal the evidence improperly. (People v Saunders, 64 NY2d 665; People v Culhane, 45 NY2d 757, 439 US 1047.)
    
      Harold V. Ferguson, Jr., New York City, and Daniel L. Green-
      
      berg for appellant in the third above-entitled action.
    I. The People failed to adduce legally sufficient evidence that appellant was acting in concert with the two men who were trying to kill him because they did not prove that appellant shared a community of purpose with these two individuals. (People v Kaplan, 76 NY2d 140; People v Flayhart, 72 NY2d 737; People v Allah, 71 NY2d 830; People v La Belle, 18 NY2d 405; People v Monaco, 14 NY2d 43; People v Whatley, 69 NY2d 784; People v Cabey, 85 NY2d 417; People v Brathwaite, 63 NY2d 839; People v Lemus, 181 AD2d 609; People v Abbott, 84 AD2d 11.) II. The court below erred when it held that there was no reasonable view of the evidence to warrant the submission of the lesser included offense of manslaughter in the second degree for the jury’s consideration. (People v Glover, 57 NY2d 61; People v Ivisic, 95 AD2d 307; People v Roe, 74 NY2d 20; People v Martin, 59 NY2d 704; People v Green, 56 NY2d 427; People v Register, 60 NY2d 270; People v Northrup, 83 AD2d 737; People v Fenner, 61 NY2d 971; People v Murray, 40 NY2d 327; People v Tai, 39 NY2d 894.)
    
      Charles J. Hynes, District Attorney of Kings County, Brooklyn (Jane S. Meyers and Roseann B. MacKechnie of counsel), for respondent in the third above-entitled action.
    I. The evidence was legally sufficient to establish defendant’s guilt of depraved indifference murder upon the theory that defendant was acting in concert with his adversaries in the gun battle. (People v Kaplan, 76 NY2d 140; People v Flayhart, 72 NY2d 737; People v Whatley, 69 NY2d 784; People v Brathwaite, 63 NY2d 839; People v Ricardo B., 73 NY2d 228; People v Abbott, 84 AD2d 11; People v Fabian, 154 Misc 2d 957; People v Morhouse, 21 NY2d 66; People v La Belle, 18 NY2d 405; People v Fasano, 11 NY2d 436.) II. The trial court correctly denied defendant’s request to permit the jury to consider the lesser charge of manslaughter in the second degree because there was no reasonable view of the evidence to support that charge. (People v Martin, 59 NY2d 704; People v Glover, 57 NY2d 61; People v Scarborough, 49 NY2d 364; People v Green, 56 NY2d 427; People v Fenner, 61 NY2d 971; People v Roe, 74 NY2d 20; People v Gomez, 65 NY2d 9; People v Register, 60 NY2d 270, 466 US 953; People v Brathwaite, 63 NY2d 839; People v Dalton, 209 AD2d 197.)
   OPINION OF THE COURT

Chief Judge Kaye.

Shortly before noon on December 17, 1992, Shamel Burroughs engaged in a gun battle with Jermaine Russell and Khary Bekka on Centre Mall of the Red Hook Housing Project in Brooklyn. During the course of the battle, Patrick Daly, a public school principal looking for a child who had left school, was fatally wounded by a single stray nine millimeter bullet that struck him in the chest. Burroughs, Bekka and Russell— defendants on this appeal — were all charged with second degree murder (Penal Law § 125.25 [1], [2]).

Two separate juries, one for Burroughs and another for Russell and Bekka, were impanelled contemporaneously and heard the evidence presented at trial. Although ballistics tests were inconclusive in determining which defendant actually fired the bullet that killed Daly, the theory of the prosecution was that each of them acted with the mental culpability required for commission of the crime, and that each "intentionally aided” the defendant who fired the fatal shot (Penal Law § 20.00). Both juries convicted defendants of second degree, depraved indifference murder (Penal Law § 125.25 [2]).

On appeal, each defendant challenges the sufficiency of the evidence. Because the evidence, viewed in the light most favorable to the prosecution, could have led a rational trier of fact to find, beyond a reasonable doubt, that each defendant was guilty of depraved indifference murder as charged, we affirm the order of the Appellate Division sustaining all three convictions.

A depraved indifference murder conviction requires proof that defendant, under circumstances evincing a depraved indifference to human life, recklessly engaged in conduct creating a grave risk of death to another person, and thereby caused the death of another person (Penal Law § 125.25 [2]). Reckless conduct requires awareness and conscious disregard of a substantial and unjustifiable risk that such result will occur or that such circumstance exists (Penal Law § 15.05 [3]). "The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation” (id.). To constitute "depraved indifference,” conduct must be " 'so wanton, so deficient in a moral sense of concern, so devoid of regard of the life or lives of others, and so blameworthy as to warrant the same criminal liability as that which the law imposes upon a person who intentionally causes the death of another’ ” (People v Fenner, 61 NY2d 971, 973; see also, People v Register, 60 NY2d 270, cert denied 466 US 953).

Although defendants underscore that only one bullet killed Patrick Daly and it is uncertain which of them fired that bullet, the prosecution was not required to prove which defendant fired the fatal shot when the evidence was sufficient to establish that each defendant acted with the mental culpability required for the commission of depraved indifference murder, and each defendant "intentionally aided” the defendant who fired the fatal shot (Penal Law § 20.00; see also, People v Brathwaite, 63 NY2d 839, 841-842). Defendants urge, however, that the evidence adduced at trial did not support a finding that they — as adversaries in a deadly gun battle — shared the "community of purpose” necessary for accomplice liability (see, People v Allah, 71 NY2d 830). We disagree. The fact that defendants set out to injure or kill one another does not rationally preclude a finding that they intentionally aided each other to engage in the mutual combat that caused Daly’s death.

People v Abbott (84 AD2d 11) provides an apt illustration. That case involved two defendants — Abbott and Moon — who were engaged in a "drag race” on a residential street when Abbott lost control and smashed into another automobile, killing the driver and two passengers. Both defendants were convicted of criminally negligent homicide, but Moon asserted that he was not responsible for Abbott’s actions and that his conviction should be set aside. Rejecting this argument, the court found that, although Moon did not strike the victim’s car and was Abbott’s adversary in a competitive race, he intentionally participated with Abbott in an inherently dangerous and unlawful activity and therefore shared Abbott’s culpability. Moon’s "conduct made the race possible” in the first place, as there would not have been a race had Moon not "accepted Abbott’s challenge” (id. at 15; see also, People v Fabian, 154 Misc 2d 957, 962 [although defendants were trying to harm each other, at the same time they acted in concert to create an explosive condition that resulted inevitably in the victims’ death and injuries]; Alston v State, 339 Md 306, 320, 662 A2d 247, 254 [there was sufficient evidence to support a jury finding that rival groups tacitly agreed, pursuant to an "unwritten code of macho honor,” that there would be mutual combat and that each group aided, abetted and encouraged its adversary to engage in urban warfare]).

In the present case, the jurors were instructed: "If you find that the People have proven beyond a reasonable doubt that [defendants] took up each other’s challenge, shared in the venture and unjustifiably, voluntarily and jointly created a zone of danger, then each is responsible for his own acts and the acts of the others * * * [and] it makes no difference whether it was a bullet from Mr. Bekka’s gun, Mr. Russell’s gun or Mr. Burrough’s gun that penetrated Mr. Daly and caused his death” (emphasis added).

The trial evidence was sufficient to support each jury’s findings in accordance with this charge. Although Burroughs was shooting at Russell and Bekka, and Russell and Bekka were shooting at Burroughs, there was adequate proof to justify the finding that the three defendants tacitly agreed to engage in the gun battle that placed the life of any innocent bystander at grave risk and ultimately killed Daly. Indeed, unlike an unanticipated ambush or spontaneous attack that might have taken defendants by surprise, the gunfight in this case only began after defendants acknowledged and accepted each others’ challenge to engage in a deadly battle on a public concourse.

As defendants approached one another on Centre Mall, a grassy open area that serves as a thoroughfare for the 7,000 residents of the 28-building housing complex, it was evident that an encounter between them would be violent and would endanger others. There was trial evidence that when Burroughs first saw Bekka and Russell walking toward him, he immediately recognized the danger, instructing the two female friends accompanying him, one of them pregnant, to "run” or "go.” They too plainly sensed the danger because, without hesitation, they turned and ran.

Despite the palpable threat, Burroughs, armed with a nine millimeter Glock, did not flee with his friends. Rather, he continued toward Russell and Bekka, tacitly accepting their invitation and issuing one of his own. In turn, Russell and Bekka, also armed with automatic weapons, continued walking toward Burroughs, challenging him and accepting his challenge. As they drew nearer, defendants each began firing their high-powered guns, capable of shooting bullets at an average rate of 1,100 feet per second, across the pedestrian thoroughfare. The dozen or more people in the area, as well as those with windows overlooking the Mall, were put at grave risk as defendants unleashed a hail of bullets. Witnesses testified that the battle sounded "like a war” and that anywhere from nine to 20 shots were fired.

Although Centre Mall is surrounded by buildings affording refuge, defendants chose instead to run through the area aggressively pursuing one another. Indeed, even after exchanging an initial volley of shots, they continued to wage their private war, issuing taunts and ducking back and forth behind buildings and trees, seeking tactical advantage. As a result of defendants’ deadly gun battle, Patrick Daly was shot in the chest and killed almost instantly.

At trial, all three defendants sought to exonerate themselves by arguing self-defense — each claiming that their opponent shot first and they were justified in firing back. Under New York law, however, a person who reasonably believes that another is about to use deadly physical force is not free to reciprocate with "deadly physical force if he knows that he can with complete safety as to himself and others avoid the necessity of so doing by retreating” (Penal Law § 35.15 [2] [a]; People v Goetz, 68 NY2d 96, 106). Here, there was evidence that defendants did not avail themselves of opportunities for safe retreat, choosing instead to use deadly force against each other. As such, there was adequate support for each jury’s rejection of defendants’ justification defense.

The evidence adduced at trial was also sufficient for the jury to determine that all three defendants acted with the mental culpability required for depraved indifference murder, and that they intentionally aided and encouraged each other to create the lethal crossfire that caused the death of Patrick Daly.

To the extent defendants’ remaining arguments are preserved, we conclude that they are without merit.

Accordingly, in each case the order of the Appellate Division should be affirmed.

Judges Titone, Bellacosa, Smith, Levine, Ciparick and Wesley concur.

In each case: Order affirmed. 
      
       The charge of second degree murder under a transferred intent theory, pursuant to Penal Law § 125.25 (1), was dismissed by the trial court.
     