People v. Hawkins

*1280Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti, J.), rendered June 24, 2003. The judgment convicted defendant, upon a jury verdict, of murder in the second degree (two counts) and burglary in the second degree.

It is hereby ordered that the judgment so appealed from is affirmed.

Memorandum: Defendant appeals from a judgment convicting him after a jury trial of two counts of murder in the second degree (Penal Law § 125.25 [2], [3] [depraved indifference murder and felony murder, respectively]) and one count of burglary in the second degree (§ 140.25 [2]). Defendant failed to preserve for our review his contention that the evidence is legally insufficient to support the conviction of depraved indifference murder on the ground that the evidence established an intentional murder and no other crime. In support of his motion for a trial order of dismissal of that count at the close of the People’s case, defendant contended “that the People . . . failed to prove a prima facie case of [d]epraved [i]ndifference [m]urder” and that, “[n]ot only [did] they fail to prove a prima facie case that [defendant] was the perpetrator of the homicide[,] . . . they failed to prove that [defendant] acted with [d]epraved [indifference.” It is well established that, “even where a motion to dismiss for insufficient evidence [is] made, the preservation requirement compels that the argument be ‘specifically directed’ at the alleged error” (People v Gray, 86 NY2d 10, 19 [1995], quoting People v Cona, 49 NY2d 26, 33 n 2 [1979]; see also People v Montes, 225 AD2d 1052 [1996], lv denied 88 NY2d 882 [1996]). It is unclear whether defendant’s motion for a trial order of dismissal was directed at the alleged legal insufficiency of the evidence of recklessness or at the depraved indifference factual setting in which the murder took place. In either event, defendant failed to preserve for our review his present contention that the evidence is legally insufficient to support the conviction of depraved indifference murder. We note that defendant was not charged with intentional murder, and thus it cannot be said that defense counsel would have been reticent to base his motion for a trial order of dismissal on the contention that, if defendant committed murder, he committed it intentionally rather than recklessly.

We reject defendant’s further contention that Supreme Court erred in admitting in evidence a blood sample based on an allegedly inadequate chain of custody for that sample. Contrary to *1281defendant’s contention, the evidence “ ‘sufficiently established the authenticity of that evidence through reasonable assurances of identity and unchanged condition’ . . . , and [thus] any irregularities in the chain of custody went to the weight of the evidence rather than its admissibility” (People v Washington, 39 AD3d 1228, 1230 [2007], lv denied 9 NY3d 870 [2007]; see People v Madison, 8 AD3d 956, 957 [2004], lv denied 3 NY3d 709 [2004]; see generally People v Julian, 41 NY2d 340, 343-344 [1977]).

Additionally, by failing to object to the court’s ultimate Sandoval ruling, defendant failed to preserve for our review his contention that the court abused its discretion in permitting the People to cross-examine him with respect to the existence, but not the underlying facts, of two of his four prior burglary convictions (see People v Hawkes, 39 AD3d 1209 [2007], lv denied 9 NY3d 845 [2007]; People v Robles, 38 AD3d 1294, 1295 [2007], lv denied 8 NY3d 990 [2007]). In any event, we conclude that “those convictions involve ‘acts of individual dishonesty’ . . . , and the court’s ruling thus does not constitute an abuse of discretion” (Robles, 38 AD3d at 1295; see People v Sandoval, 34 NY2d 371, 377 [1974]). Finally, the sentence is not unduly harsh or severe.

All concur except Scudder, EJ., and Green, J., who dissent in part and vote to modify in accordance with the following memorandum.