AD1 order dated May 17, 2011, affirming judgment of conviction. Decision below: 84 AD3d 550, 925 NYS2d 8. Tom, J. (AD dissenter), granted leave September 29, 2011.

ISSUES PRESENTED: (1) The sufficiency of evidence of depraved indifference (as opposed to intentional) murder and (2) whether counsel preserved the issue for appellate review by moving to dismiss that count on the correct ground, but then not objecting to the wording of the charge as given. (3) Constitutional speedy trial. (4) Denial of motion to suppress statements. (5) Delay in disclosing new evidence to the defense. (6) DA misconduct on summation. (7) Ineffective assistance of counsel.

Issue: Whether the evidence was sufficient to establish depraved-indifference reckless second-degree murder.

Held: Evidence was insufficient for depraved indifference murder: Defendant’s acts were consistent with intentional murder, not recklessness, where, after an altercation with the victim, defendant obtained a gun, chased victim, and fired four or five shots at him at near point-blank range.

CAL observes: Were one to read only the Court’s unsigned memorandum opinion Martinez would appear to be just another in a long line of cases from the Court holding that an intentional one-on-one killing cannot also be a depraved indifference reckless murder.

In a lengthy concurring opinion, Judge Smith not only summarized the evolution of post-Register depraved-indifference-murder jurisprudence, but also explained that counsel’s motion to dismiss on legal sufficiency grounds preserved his current sufficiency challenge notwithstanding that he did not object to the court’s charge to the jury on the elements of depraved indifference murder.