The majority asserts that defendant’s testimony, “credited by the jury,” that he “accidentally * * * exerted the minimum pressure necessary to fire the weapon”, does not warrant the conclusion that his action was so mindless of consequences as to constitute a depraved indifference to human life. I disagree and would affirm.
When defendant went into a shooter’s crouch, cocked and aimed the gun at Giani’s head, he was acting in such a reckless manner as to evidence a depraved indifference to life. Defendant’s own witnesses testified that once the Colt .38 was cocked, even the slightest movement over a distance as short as .012 inch would cause the gun to fire. The owner’s manual for this gun warns that cocking the gun is extremely dangerous since it can easily be accidentally discharged. Defendant’s experts also testified that they had witnessed or investigated numerous incidents where an accidental application of a very light touch discharged this gun. One of the witnesses even testified that this risk is so serious that numerous law enforcement agencies, including the New York City Police Department and the Secret Service, do not allow officers to fire in this fashion.
The evidence before the jury showed that defendant was aware of the substantial and unjustifiable risk in cocking his gun and consciously disregarded that risk (Penal Law § 15.05 [3]). He had access to the owner’s manual and underwent individual training, although brief, from a professional instructor in handling, firing and safety. He had practiced at least half a dozen times on the firing range with the same Colt .38, usually with the weapon cocked. Thus, defendant must have been aware that when he cocked and aimed the gun, there was a grave risk of the gun discharging with the slightest pressure exerted on its hair trigger. He consciously disregarded that grave risk. This conduct evinced a depraved indifference to human life. “Depraved mind murder resembles manslaughter in the second *272degree (a reckless killing which includes the requirement that defendant disregard a substantial risk [Penal Law, § 125.15 subd 1; § 15.05, subd 3]), but the depraved mind murder statute requires in addition not only that the conduct which results in death present a grave risk of death but that it also occur ‘[u]nder circumstances evincing a depraved indifference to human life.’ This additional requirement refers to neither the mens rea nor the actus reus. If it states an element of the crime at all, it is not an element in the traditional sense but rather a definition of the factual setting in which the risk creating conduct must occur” (People v Register, 60 NY2d 270, 276).
It was well within the jury’s province to find a depraved indifference to human life in the factual setting presented.
After the auto accident, defendant followed the other auto and got out of his car with a tennis racket. Upon being confronted with a nightstick carried by Giani, defendant retreated. A short time later, defendant drove his car directly at Giani. Thereafter, defendant had more than enough time to calm down and call the police from his apartment. Instead, he took a loaded gun from home and went back to the scene of the altercation. Defendant not only cocked the gun, but assumed a shooter’s stance and took deliberate aim at Giani. He knew that it took only the “slightest” force, whether done intentionally or accidentally, to fire that gun. Defendant’s conduct after the shooting also showed his depraved indifference to human life. He left Giani dying in the street, and deliberately interrupted a 911 call which could have brought medical aid to the victim. “Whether the risk of defendant’s conduct was of the type condemned by the Penal Law was to be decided by the trier of the facts aided by appropriate instructions (People v Licitra, 47 NY2d 554, citing People v Haney, 30 NY2d 328; People v Angelo, 246 NY 451). The jury’s proper role, as the Appellate Division found, was to make a qualitative judgment whether defendant’s act was of such gravity that it placed the crime upon the same level as the taking of life by premeditated design * * * It had to determine from the evidence if defendant’s conduct, though reckless, was equal in blameworthiness to intentional murder” (People v Register, supra, at pp 274-275). The evidence presented supported the verdict, and the contrary finding by the majority herein therefore usurps “[t]he jury’s proper role.”
Finally, the “inference” drawn by the majority from a post-trial letter received from a juror, that the jury would have found defendant guilty of a lesser degree of homicide had they realized that depraved indifference murder was murder in the second *273degree, is unwarranted. Before the verdict, the jury asked if the counts were “presented in descending order of seriousness.” The court repeated that manslaughter was a lesser included offense of murder and cautioned the jury that it should not consider punishment or possible punishment in its deliberations. According to the letter referred to by the majority, the jurors thereafter elected to announce the “compromise” verdict, even though by then they fully understood that they earlier had been “laboring under a false assumption.”
In any event, it is inappropriate for this court to speculate on what happened during deliberations. Statements or testimony by jurors may not be used to impeach a verdict that has been solemnly made and publicly returned in court (see, People v De Lucia, 15 NY2d 294, cert denied 382 US 821, on rearg 20 NY2d 275; Dalrymple v Williams, 63 NY2d 361; People v Foti, 99 AD2d 517).
Sandler and Ellerin, JJ., concur with Bloom, J.; Murphy, P. J., and Asch, J., dissent in an opinion by Asch, J.
Judgment, Supreme Court, New York County, rendered on November 1,1984, modified, on the law and the facts, to reduce the conviction to manslaughter in the second degree, and the matter remanded to the Supreme Court, New York County, for resentence.