concurs in part and dissents in part, and votes to affirm the judgment appealed from, with the following memorandum: I note initially that I have no quarrel with the majority’s rejection of the defendant’s contention that the count of the underlying indictment which charged him with the crime of criminal possession of a weapon in the second *784degree was duplicitous and defective for lack of specificity. However, I strongly disagree with the majority’s finding that the evidence adduced is legally insufficient to establish the requisite grave risk of death necessary to sustain the defendant’s conviction of reckless endangerment in the first degree. As per the statutory language, "[a] person is guilty of reckless endangerment in the first degree when, under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person” (Penal Law § 120.25). In the instant case, the defendant, from a distance of approximately 25 feet in front of the pursuing police officers, turned, assumed a combat stance and aimed his gun at the windshield of their vehicle. Officer Freeman testified at trial that the defendant had, in fact, pulled the trigger. His testimony was found to be credible by the trier of fact. The officers immediately took cover behind the dashboard of their vehicle. As they carefully exited the vehicle, they observed the defendant at the front door of an apartment house. As Officer Freeman ran across the lawn in an attempt to take cover behind the building, the defendant again aimed his weapon at him. Officer Farley then shot the defendant before the latter could fire at his partner. Upon taking possession of the defendant’s weapon, the officers observed that it bore no serial number and that, although it was loaded, there was a spent shell jammed in the chamber. The police ballistics expert testified that both the gun and the ammunition retrieved from the defendant were operable, and that the internal part of the barrel showed evidence of discharge. It was very highly probable that a bullet fired from such a weapon would pierce a bullet-proof vest.
This set of facts leads ineluctably to the conclusion that this defendant was guilty of reckless conduct evincing a depraved indifference to human life and creating a grave risk of death to another. Clearly, more was involved here than firing a pistol in the air and then pointing it at a person or brandishing a knife on a subway car, examples of conduct deemed by the Appellate Division, First Department, to fall short of that required to support a conviction for reckless endangerment in the first degree (see, People v Richardson, 97 AD2d 693; People v Wilkens, 97 AD2d 698). Where a defendant adopts a combat stance, aims an operable weapon at pursuing police officers and pulls the trigger, he is guilty of reckless endangerment in the first degree irrespective of such considerations as his marksmanship skills, or his knowledge or design with respect to any particular victim (see, People v Koullias, 96 AD2d 869, 870; People v Graham, 41 AD2d 226, 228).