in a memorandum by Andrias, J., as follows: Although the People argue in conclusory fashion that defendant’s conviction for depraved indifference murder is supported by sufficient evidence and the jury’s verdict was not against the weight of the credible evidence, their principal argument is that defendant’s general motions for a trial order of dismissal failed to preserve his challenge to the sufficiency of the evidence supporting his conviction of depraved indifference murder and that we should not exercise our discretion to review the issue in the interest of justice.
The majority’s refusal to exercise our discretion pursuant to CEL 470.15 (3) (c) to review defendant’s conviction in the interest of justice relies upon the premise that a defendant who committed a vicious crime but was charged and convicted under the wrong section of the murder statute is not an “attractive” candidate for collateral relief (see Policano v Herbert, 7 NY3d 588, 604 [2006], quoting People v Suarez, 6 NY3d 202, 217-218 [2005, concurring op]). First of all, this is not a collateral attack upon defendant’s conviction, but a statutorily authorized appeal. Secondly, the majority’s reliance upon the “not attractive” phrase in Suarez takes such phrase out of context.
That context was a discussion regarding the “price to be paid for this needed revision in the Court’s approach” (Suarez at 217), i.e., its return to a more restrictive, and sounder interpretation of the depraved indifference murder statute. The concurrence stated, in pertinent part: “In overturning convictions in such cases, the Court, in our view, performs an unpleasant but necessary duty, and by doing so will make future homicide prosecutions more sustainable, increasing the likelihood that defendants who are proven beyond a reasonable doubt to have committed intentional murder will be properly held to account for that crime. We expect, or at least hope, that the rule embodied in this and our other recent decisions will be applied prospectively, and that any impact on already completed prosecutions can be avoided. Defendants who committed vicious crimes but who may have been charged and convicted under the wrong section of the statute are not attractive candidates for *295collateral relief after their convictions have become final.” {Id. at 217-218.) However, the concurrence went on to say: “A defendant who commits intentional murder should be convicted and punished for that crime, not for a crime that he or she did not commit and that a jury may mistakenly believe is less serious. Where intentional murder is not made out, the lesser degrees of homicide, including first and second degree manslaughter, can fully serve the function they served for decades before the relatively recent, seismic expansion in depraved indifference murder prosecutions.” (Suarez at 218.) Thus, it is clear that reductions of depraved indifference murder convictions to lesser degrees of homicide, including, in this case, second degree manslaughter, were anticipated results of the Court’s decision in Suarez and its progeny.
Moreover, the majority’s reliance upon this Court’s statement in People v Danielson (40 AD3d 174, 175 [2007], lv granted 2007 NY Slip Op 70483[U] [2007]) that, “in a criminal case such as this, where a defendant’s argument for appellate reversal rests on the unseemly assertion that he is entitled to relief because he intentionally murdered the victim, rather than having recklessly caused his death, no plausible argument can be made that review of defendant’s claim is in the interests of justice,” misinterprets this Court’s interest of justice power in criminal appeals {see CPL 470.15 [3] [c]). However appealing that rationale may seem, and however distasteful it may be to reverse a murder conviction of a defendant a court may feel is guilty, this Court, as are all courts, is duty bound to decide the cases before it upon reason and the law as written or interpreted by established legal precedent.
It has long been held that “[t]his court is expressly empowered to set aside the verdict of guilty and order a new trial in any case where ‘justice requires a new trial’ (Code Grim. Pro., § 527). Thereby, there is vested in this Court a broad and discretionary power to be exercised in accordance with the conscience of the court and with due regard to the interests of the defendant and those of society. Although our ultimate concern should be the interests of justice in this particular case, our responsibilities also include a duty to correct any situation which casts a doubt upon the proper functioning of the courts in the administration of justice” {People v Kidd, 76 AD2d 665, 668 [1980], appeal dismissed 51 NY2d 882 [1980]). To the extent that the majority here relies upon evidence of guilt of some form of homicide (specifically manslaughter in the first degree, an unsubmitted lesser included offense of the intentional murder count of which defendant was acquitted) and the concept that evidence of guilt *296should foreclose our review of an improperly obtained conviction, such an approach has been rejected in cases involving harmless error analysis (see e.g. People v Jackson, 7 NY2d 142, 145 [1959] [“it could never have been the legislative design that a court should regard errors as technical, however grave they may be, upon the hypothesis that, in any event, the jury correctly decided the case”]) and should be rejected here.
Accordingly, I would exercise our interest of justice discretion and find that, under the circumstances of this case, the verdict was not supported by legally sufficient evidence. I would further find that the verdict was against the weight of the evidence (see generally People v Cahill, 2 NY3d 14, 57-62 [2003]) with respect to the element of depraved indifference to human life, viewed in light of the court’s charge to the jury on that element (see People v Noble, 86 NY2d 814 [1995]).
Defendant fatally shot his brother once in the back as he fled after defendant brandished a gun following a heated argument over money in the street. This one-on-one shooting was not “marked by uncommon brutality” (People v Payne, 3 NY3d 266, 271 [2004]), and did not evince the mental culpability required for depraved indifference (see People v Feingold, 7 NY3d 288, 293-294 [2006]; People v Suarez, 6 NY3d 202 [2005]). However, the evidence, including testimony that defendant brandished a revolver during the dispute and fired the gun at the fleeing victim as others, including children, stood nearby, was sufficient to support a finding that defendant acted recklessly, as the jury determined (see People v Atkinson, 7 NY3d 765 [2006]; People v McMillon, 31 AD3d 136 [2006], lv denied 7 NY3d 815 [2006]; People v Dudley, 31 AD3d 264 [2006], Iv denied 7 NY3d 866 [2006]). Thus, I would reduce defendant’s murder conviction to manslaughter in the second degree with a remand for resentencing on that count (see CPL 470.15 [2] [a]).
That the only defense argued at trial was misidentification did not relieve the People of their burden of proving defendant’s guilt of depraved indifference murder beyond a reasonable doubt. Moreover, in dismissing the defendant’s plea to have us consider the weight of the credible evidence, the majority concludes that “[h]owever similar in certain respects the jury instructions [in Suarez] may be, the sufficiency claims in Suarez, unlike the sufficiency claims here, were preserved for review.” However, inasmuch as the trial court possesses neither our unique power to vacate a jury’s verdict as against the weight of the credible evidence nor our statutory authority to review a conviction as a matter of discretion in the interest of justice, such statement is a non sequitur, preservation not being rele*297vant to weight of the evidence or interest of justice review (People v Rivera, 222 AD2d 317, 318-319 [1995]). Nevertheless, the majority claims that, by arguing that the jury’s verdict is against the weight of the evidence, the defendant is not relieved of the consequences of his failure to object to the court’s charge on the elements of depraved indifference murder (citing People v Noble, 86 NY2d 814, 815 [1995]). Noble, however, is distinguishable in that it involved an element that the court, without objection from defendant, completely omitted from its jury instructions. Here, regardless of the fact that the jury was charged in this case on the objective standard enunciated in People v Register (60 NY2d 270 [1983]) rather than the subjective standard later adopted in People v Feingold (7 NY3d 288, 294 [2006]), and considering the trial evidence in the light most favorable to the People, there is no view of the evidence that would reasonably support a conclusion that defendant acted under circumstances evincing a depraved indifference to human life under the Suarez or pre-Suarez standard.
I agree that defendant’s other contentions, including those raised in his pro se supplemental brief are unconvincing and would not merit a reversal.