On May 3, 1991, defendant, while standing outside, fired four or five shots into a vestibule occupied by three people. One of those occupants, Lee, had been involved in an altercation with defendant minutes earlier. I suspect that one of the victims of the shooting, Anthony Ovando, would dispute the majority’s characterization that the shooting occurred at “near point-blank range” (majority mem at 972), since the testimony adduced by the People at trial established that Lee used Ovando as a human shield, resulting in Ovando taking fire to his waist.
In my view, the proof adduced by the People at trial, viewed in the light most favorable to the People, was sufficient to uphold defendant’s conviction for depraved indifference murder (see People v Suarez, 6 NY3d 202, 214 [2005] [shooting into a crowd a “(q)uintessential example” of depraved indifference murder]; People v Jernatowski, 238 NY 188, 192 [1924] [“when the defendant fired two or more shots into the house where he knew there were human beings he committed an act which the jury certainly could say was imminently dangerous and which evinced a wicked and depraved mind regardless of human life and which amply supplied the evidence of malice and felonious intent”]).
One need only consider the number of shots fired, the number of occupants in the small vestibule and the fact that these occupants were trying to gain access to the apartment building when defendant fired the shots to discern that such facts “were *980sufficient to present a question for the jury concerning whether defendant evinced ‘a depraved indifference to human life’ ” (People v Fenner, 61 NY2d 971, 973 [1984], citing Penal Law § 125.25 [2]; see People v Campbell, 33 AD3d 716, 719 [2d Dept 2006], lv denied 8 NY3d 879 [2007] [holding that the defendant who fired five shots at three fleeing men was guilty of depraved indifference murder since “(a) rational jury could reasonably conclude that the defendant did not care whether harm would result when he commenced his shooting spree in the direction of the three fleeing men”]). Given the facts with which the jury was presented, its guilty verdict was hardly irrational and should not be disturbed.
Chief Judge Lippman and Judges Ciparick, Graffeo, Read and Smith concur; Judge Smith concurs in a separate opinion; Judge Pigott dissents in an opinion.
Order modified by vacating defendant’s conviction of depraved indifference murder, dismissing the count of the indictment charging depraved indifference murder, and remitting to Supreme Court, New York County, for resentencing and, as so modified, affirmed, with leave to the People, if so advised, to present a charge of manslaughter in the first degree to a new grand jury, in a memorandum.