We respectfully dissent in part because we cannot agree with the majority that the judgment should be modified by reversing that part convicting defendant of depraved indifference murder (Penal Law § 125.25 [2]). The majority correctly acknowledges that defendant failed to preserve for our review his contention that the evidence with respect to the issues of recklessness and depraved indifference is legally insufficient to support the conviction of that crime and, unlike the majority, we see no reason to exercise our power to review that contention as a matter of discretion in the interest of justice (see GPL 470.15 [6] [a]; see e.g. People v Robinson, 21 AD3d 1413 [2005], lv denied 5 NY3d 885 [2005]; People v Grant, 17 AD3d 695 [2005], lv denied 5 NY3d 762 [2005]; People v Gutierrez, 15 AD3d 502 [2005], lv denied 5 NY3d 763 [2005]).
In our view, there is a valid line of reasoning and permissible inferences that could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial and “as a matter of law satisfy the proof and burden requirements for every element of the crime charged” (People v Bleakley, 69 NY2d 490, 495 [1987]). “The standard for reviewing the legal sufficiency of evidence in a criminal case is 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’ ” (People v Contes, 60 NY2d 620, 621 [1983], quoting Jackson v Virginia, 443 US 307, 319 [1979]; see People v Taylor, 94 NY2d 910, 911 [2000]; People v Cabey, 85 NY2d 417, 420-421 [1995]).
The record before us establishes that decedent’s death was caused by a gunshot to the head, fired at close range. The shooting took place in the small, enclosed foyer of a house, and five or six people were located in proximity to defendant at that time. There is no indication that defendant had any animosity toward decedent or any other motive to cause his death. Defendant, decedent and the other victim were together in the kitchen of the house for a period of time. No words were exchanged and there were no threatening gestures or other indications of hostility. After they had been in the kitchen for approximately five minutes, defendant and two of his associates moved to the foyer, where they spoke with a fourth man near the front door that opened into the foyer. The victims began to leave the residence through that door rather than exiting through the kitchen, thus *1142circumstantially establishing that decedent had no unsettled quarrels with defendant. At some point after the victims entered the foyer, still without any verbal exchanges among defendant, his associates or the victims, defendant apparently nudged decedent against a wall in the foyer, causing decedent to smile. Without provocation, defendant raised a gun, which discharged, and the projectile struck decedent in the head. Additional shots were fired during the ensuing melee, striking both victims. Although the record is silent with respect to the origin of the other shots that struck decedent, the evidence establishes that at least one additional weapon was discharged during the incident.
Based on that evidence, the jury could reasonably have found that defendant did not intend to kill decedent, but that he acted with “ ‘an utter disregard for the value of human life—a willingness to act not because one intends harm, but because one simply doesn’t care whether grievous harm results or not’ ” (People v Feingold, 7 NY3d 288, 296 [2006]). The evidence establishes that defendant acted spontaneously, and there is no evidence of motive or prior negative contact between defendant and the victims (see People v Campbell, 33 AD3d 716 [2006]). In addition, in light of the confined quarters in the foyer and the number of people there, it was unquestionably reckless to brandish a loaded weapon. Furthermore, given the absence of testimony that defendant said anything to decedent at the time of the shooting, or even that he was looking at decedent, there is no evidence of a manifest intent to kill decedent.
The contention of defendant that he must have intended to shoot decedent because decedent was shot in the head at pointblank range is without merit. Indeed, we have previously upheld a depraved indifference murder conviction involving similar facts (see People v Williams, 5 AD3d 1043, 1044 [2004], lv denied 2 NY3d 809 [2004]), and the Third Department also has upheld such a conviction in a case involving a shooting at pointblank range, stating that, “[a]bsent a subjective intent to shoot to kill, the circumstances surrounding the shooting in this case evince a recklessness with a depraved indifference to human life” (People v Thompson, 233 AD2d 755, 757 [1996], lv denied 89 NY2d 1102 [1997]).
We cannot agree with the majority’s conclusion that “the trial evidence establishes defendant’s use of a weapon with a ‘manifest intent to kill’ the victim . . . .’’As previously noted, there is no evidence that would suggest that defendant had any reason or intent to kill decedent. Significantly, the record is silent with respect to whether defendant fired the other two *1143shots that struck decedent, and it is uncontroverted that at least one additional weapon was fired. Thus, the jury could reasonably have found that defendant was only responsible for the first shot, thereby negating the multiple shot theory.
Although there is “a point at which the risk of death or risk of serious bodily injury approaches a certainty, and it defies logic to charge or to make a finding of depraved indifference,” this is not such a case (People v Sanchez, 98 NY2d 373, 393 [2002]). Here, the issue whether defendant’s conduct was reckless or intentional was for the jury to resolve, and we conclude that the evidence in this case supports a mens rea other than an intent to kill (see People v Hall, 309 AD2d 511 [2003], lv denied 1 NY3d 572, 3 NY3d 641 [2003]; see generally People v Caruso, 6 AD3d 980, 984 [2004], lv denied 3 NY3d 704 [2004]).
In view of its decision, the majority did not address defendant’s contention that the evidence before the grand jury was legally insufficient with respect to the depraved indifference murder count. We conclude that defendant’s contention is not properly before us on this “appeal from [a] judgment of conviction based upon legally sufficient trial evidence” (CPL 210.30 [6]; see People v Taylor, 225 AD2d 640 [1996], lv denied 88 NY2d 943 [1996]).
We further conclude that the verdict is not against the weight of the evidence (see generally Bleakley, 69 NY2d at 495). “Where, as here, witness credibility is of paramount importance to the determination of guilt or innocence, [we] must give ‘[g]reat deference ... [to the] fact-finder’s opportunity to view the witnesses, hear the testimony and observe demeanor’ ” (People v Harris, 15 AD3d 966, 967 [2005], lv denied 4 NY3d 831 [2005], quoting Bleakley, 69 NY2d at 495). Although we agree with defendant that a different finding would not have been unreasonable, we conclude upon weighing “ ‘the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony’ ” that the jury did not fail to give the evidence the weight it should be accorded (Bleakley, 69 NY2d at 495). We agree with the majority’s resolution of the remaining issues raised on appeal, and we therefore would affirm the judgment. Present— Martoche, J.P, Smith, Centra, Lunn and Fahey, JJ.