concurs in part and dissents in part, and votes
to affirm the defendant’s convictions of reckless driving and driving without a license, and to order a new trial with respect to all the remaining counts of which the defendant was convicted, with the following memorandum, in which Florio, J.E, concurs: I concur with the majority that the defendant is entitled to a new trial because of trial errors. However, I disagree with the conclusion of the majority that the counts of the indictment charging the defendant with murder in the second degree (two counts) and assault in the first degree upon the theory that he acted with depraved indifference to human life should be dismissed.
At about 4:00 a.m. on January 16, 2000, two Mercedes-Benz vehicles, one a light-colored Mercedes driven by the defendant and the other a dark-colored burgundy or maroon Mercedes, *407passed vehicles on the eastbound Belt Parkway at a speed of 80 to 90 miles per hour. After slowing down for a cluster of 10 or 12 vehicles, the two vehicles accelerated to a speed which eyewitnesses estimated was 100 miles per hour or more. There were other cars on the road and the two Mercedes vehicles were “zigzagging” and weaving in and out of traffic around other vehicles which were proceeding in the center lane. The two Mercedes vehicles appeared to be racing each other in what was characterized as a “game of cat and mouse,” with both vehicles “weaving in and out of traffic . . . almost like a train where the first car goes the second one goes regardless because they’re on tracks.”
The two Mercedes vehicles passed a sport utility vehicle in the center lane at a speed of at least 100 miles per hour, causing the sport utility vehicle to shake, and continued “in separate lanes with one lane in between them . . . neck and neck.”
The defendant’s vehicle passed a Nissan Pathfinder on the right at a speed of at least 100 miles per hour, while the driver of the maroon Mercedes passed the Pathfinder on the left. The driver of the Pathfinder testified at trial that he “embraced” his steering wheel with both hands because his vehicle “started shaking when they passed me.” The defendant’s vehicle cut in front of the Pathfinder, forcing its driver to bear to the left.
Just west of a gas station situated in the median between the eastbound and westbound traffic lanes of the Belt Parkway, the two Mercedes were both traveling in the left lane with the maroon Mercedes in the lead. The maroon Mercedes veered to the right and sped away. The defendant’s vehicle collided with the rear of a Honda vehicle as the Honda turned into the gas station. The owner of the Honda testified that the Honda was traveling at between 40 and 50 miles per hour before impact. The defendant admitted to the police that he had no time to stop to avoid hitting the Honda. His vehicle left tire marks indicating that the brakes were not engaged before the collision.
After striking the Honda, the defendant’s vehicle traveled another 366 to 368 feet, which distance is “[l]onger than a football field.” His vehicle hit a guide rail, tore the guide rail out of the ground, overturned, and burst into flames. The estimated speed of the defendant’s vehicle after it hit the guide rail was 73 miles per hour.
The Honda was pushed onto the entrance ramp of the gas station, mounted the guide rail, and rode the guide rail until it flipped over and hit the pavement after traveling 376 feet from the point of impact. The front of the Honda then hit a 20-foot long stretch limousine and pushed the limousine an additional 212 feet.
*408An accident investigation expert who testified on behalf of the People at trial stated that in his opinion, at the instant it struck the Honda, the Mercedes was traveling between 98 and 108 miles per hour with a likely speed of 102 miles per hour. The expert indicated that the defendant “could have been going faster because through the equation that I use, I used lower figures ... to achieve a conservative analysis.” As noted by the majority, the expert based his calculations on the factory weights of the Honda and the Mercedes. However, the expert further testified that “if you put another 1,000 pounds [in] the Honda, that raises the speed of the Mercedes. If you put another thousand pounds in the Mercedes, that reduces the speed of the Mercedes somewhat;” if the weights of both vehicles were both increased the “trajectory in a crash will remain roughly the same because I have increased the weights of. . . each vehicle.”
“Generally, the assessment of the objective circumstances evincing the actor’s ‘depraved indifference to human life’—i.e., those which elevate the risk to the gravity required for a murder conviction—is a qualitative judgment to be made by the trier of facts” (People v Roe, 74 NY2d 20, 25 [1989]; see People v Keating, 283 AD2d 589 [2001]; People v Soto, 240 AD2d 768, 769 [1997]) which should be upheld if there is evidence to support the determination (see People v Roe, supra at 25). Depraved indifference murder “results not from a specific, conscious intent to cause death, but from an indifference to or disregard of the risks attending [the] defendant’s conduct” (People v Gonzalez, 1 NY3d 464, 467 [2004]). “It will suffice if it can be said beyond a reasonable doubt . . . that the ultimate harm is something which should have been foreseen as being reasonably related to the acts of the accused” (People v Kibbe, 35 NY2d 407, 412 [1974]). Depraved indifference to human life may be found when an automobile is “used ... in a wanton and callous manner, thereby posing a grave risk of death” (People v Gomez, 65 NY2d 9, 12 [1985]).
In the instant case, the majority acknowledges that the defendant’s argument that the evidence was legally insufficient was unpreserved for appellate review (see People v Finger, 95 NY2d 894, 895 [2000]; People v Gray, 86 NY2d 10, 19-21 [1995]). Nevertheless, the majority contends that the “equivocal nature of the evidence upon which the conviction was based warrants the invocation of our interest of justice jurisdiction.” “[T]he interest of justice power permits an intermediate appellate court to vacate a conviction . . . when ‘there is a grave risk that an innocent man has been convicted’ ” of the charges (People v Carter, 63 NY2d 530, 536 [1984], quoting People v Kidd, 76 *409AD2d 665, 668 [1980]; see People v Gioeli, 288 AD2d 488 [2001]; People v Henderson, 275 AD2d 948 [2000]; People v Carthrens, 171 AD2d 387, 392 [1991]). No such risk is present in this case.
Viewing the evidence in the light most favorable to the prosecution as we must (see People v Contes, 60 NY2d 620, 621 [1983]), the evidence was legally sufficient to establish that the defendant acted with depraved indifference to human life. Further, the totality of the circumstances establish that the jury’s verdict was not against the weight of the credible evidence (see People v Kirkpatrick, 177 AD2d 508 [1991]; People v Legendre, 134 AD2d 525, 526 [1987]). In exercising its factual review power, this Court must be careful not to substitute itself for the jury since “[g]reat deference is accorded to the fact-finder’s opportunity to view the witnesses, hear the testimony and observe demeanor” (People v Bleakley, 69 NY2d 490, 495 [1987]).
Contrary to the majority’s conclusion, the testimony presented at the trial was not inconsistent or equivocal. The testimony of disinterested eyewitnesses not involved in the accident demonstrated that after the defendant was forced to slow down for a cluster of other vehicles which he could not pass, he accelerated to a speed of approximately 100 miles per hour and proceeded with his “ ‘cat and mouse’ game” (People v Esposito, 216 AD2d 317, 318 [1995]) on a high-speed multi-lane roadway amongst other traffic on the roadway (see People v Keating, supra; People v Hoffman, 283 AD2d 928 [2001]; People v Legendre, supra).
The eyewitnesses’ testimony was corroborated by physical evidence and the testimony of the People’s expert. The majority’s criticism of the expert’s methods goes to the weight to be accorded his testimony and not the admissibility of his testimony.
The majority concludes that the “unrefuted evidence indicated that. . . the defendant repeatedly slowed his vehicle where the traffic conditions so warranted.” (Supra at 405.) This conclusion is not supported by the record. The testimony of the disinterested eyewitnesses was that the defendant slowed down on two occasions because he was looking for the other Mercedes in order to continue his race with that vehicle. Further, upon the approach to the gas station, which was clearly marked and “pretty lit up,” the defendant made no effort to slow down or brake although traffic conditions clearly so warranted.
The majority also cites to additional factors which, under the facts presented at the trial and pursuant to well-settled law, are not relevant to the question of whether the defendant acted with depraved indifference to human life.
The majority notes that the defendant was precluded from *410developing evidence that the driver of the Honda may have been under the influence of illegal substances. However, our determination of the sufficiency of the evidence must be based upon the record before us, not speculation as to whether the defense counsel’s additional exploration of drug use by the driver of the Honda which may be presented at a new trial would create a reasonable doubt. The evidentiary errors at trial are not grounds for dismissal of any charges but rather the basis for a new trial (see People v Bouton, 50 NY2d 130, 136 [1980]).
Since no residences or pedestrians were present on the Belt Parkway the majority would find that depraved indifference to human life was not established since “[t]he gravest threat to human life by the defendant’s driving was posed by the presence of other vehicles on the parkway.” (Supra at 405.) However, vehicles have drivers and passengers, as the testimony of the disinterested eyewitnesses demonstrated. There is no basis to conclude that persons occupying vehicles on a highway dedicated to vehicular traffic have less rights to a safe passage than persons on a residential street.
The majority notes that the defendant did not collide with any other vehicle before the accident. However, on this point, the Court of Appeals has explicitly held that it is not necessary that “one person be struck first for the conduct to constitute depraved indifference” (People v Roe, supra at 25 n 4; see People v Gomez, supra at 12).
The majority notes that traffic was relatively light on the Belt Parkway in the early morning hours. This circumstance merely allowed the defendant to accelerate to speeds in excess of 100 miles per hour and weave in and out of traffic without injury to himself, before ultimately colliding with the victims’ vehicle. The relatively light traffic did not undercut the jury’s determination that the defendant acted with depraved indifference to human life (see People v Rodriguez, 217 AD2d 403, 404 [1995]; see also People v Parks, 281 AD2d 217 [2001]).
Further, the majority notes that there is no evidence of the defendant’s intoxication. Although voluntary intoxication is not a defense to depraved mind murder (see People v Register, 60 NY2d 270, 279 [1983], cert denied 466 US 953 [1984]; People v Hilligas, 291 AD2d 926 [2002]) it is not an element of the crimes charged. Driving while unable to perform requisite driving skills due to voluntary intoxication may constitute some evidence of wantonness (see People v Thacker, 166 AD2d 102, 109 [1991]). However, in the instant case, the defendant’s ability to perform requisite driving skills was not in issue. Rather, the evidence *411indicated that the defendant attempted to prove that he had superior driving skills, while ignoring the grave risk to other persons on the road.
The majority also describes the defendant as having an “unblemished record.” The fact that the defendant’s past conduct may be described as an “unblemished record” is not relevant to whether the People proved his guilt of the crimes charged beyond a reasonable doubt. Such a factor is relevant to sentencing, not to guilt or innocence of the crimes charged. On this point, the Supreme Court noted at sentencing that there was no excuse for the defendant treating the Belt Parkway as his “personal playground” and his “personal Indianapolis Speedway.”
In view of the foregoing, the new trial should include the counts of the indictment charging the defendant with murder in the second degree (two counts) and assault in the first degree on the theory that the defendant acted with depraved indifference to human life.