Defendant argues that his conviction for depraved indifference murder was based on legally insufficient evidence. He suggests alternative “theories” to support such claim, including that his conduct was intentional, citing People v Payne (3 NY3d 266 [2004]), and that the circumstances surrounding the shooting do not come within the narrow class of cases evincing utter depravity, uncommon brutality and inhuman cruelty, citing People v Suarez (6 NY3d 202 [2005]). The People argue that the recent changes in the law regarding depraved indifference murder do not apply here because defendant was convicted months before such changes were articulated by the Court of Appeals. The majority, in reliance on the series of cases handed down by the Court of Appeals following defendant’s trial and conviction, *565including People v Payne (supra) and People v Suarez (supra), concludes that defendant’s underlying depraved indifference was not sufficiently shown.
To be sure, at the time of defendant’s conviction in January 2003, the elements of depraved indifference murder were governed by People v Register (60 NY2d 270 [1983], cert denied 466 US 953 [1984]) and People v Sanchez (98 NY2d 373 [2002]; see Policano v Herbert, 7 NY3d 588 [2006]). Applying the standards outlined under these cases, defendant’s conviction for depraved indifference murder would be affirmed. It was only thereafter that a change in the law began to evolve, beginning with People v Hafeez (100 NY2d 253 [2003]) and culminating with People v Feingold (7 NY3d 288 [2006]), which explicitly overruled Register and Sanchez.
Importantly, on November 16, 2006, the Court of Appeals handed down Policano v Herbert (supra). In Policano, the Court of Appeals was called upon to determine whether its post-Sanchez case law (see People v Feingold, supra; People v Suarez, supra; People v Payne, supra; People v Gonzalez, 1 NY3d 464 [2004]; People v Hafeez, supra) should apply to cases in which a defendant’s conviction was already final. In applying the three-pronged retroactivity test articulated in People v Pepper (53 NY2d 213, 220 [1981], cert denied 454 US 967 [1981]), the Court of Appeals concluded that the new definition of depraved indifference would not apply retroactively to final cases (see Policano v Herbert, supra at 603-604; see also People v Stewart, 36 AD3d 1156,1162-1163 [2007], Iv denied 8 NY3d 991 [2007]). The question of whether the new definition should be applied to cases on direct appeal (see e.g. People v Pepper, supra at 221)—or instead, whether it should be applied only prospectively (see e.g. People v Martello, 93 NY2d 645, 652 [1999]; People v Mitchell, 80 NY2d 519, 528-529 [1992]; see also United States v Peltier, 422 US 531, 535-536 [1975])—remained unanswered. I feel the issue must now be addressed.
Significantly, it is firmly established that “a new rule of State law need not automatically be applied to all cases currently in the direct appellate pipeline” (People v Favor, 82 NY2d 254, 262 [1993]; see People v Martello, supra at 651-652; People v Mitchell, supra at 526-529; People v Reilly, 195 AD2d 95, 100 [1994]; People v Little, 88 AD2d 671, 672 [1982]). Rather, “when confronted with a direct appeal that implicates a newly announced State rule of law, an appellate court must consider the threshold question of retroactivity, weighing three basic factors—(1) the purpose to be served by the new rule, (2) the extent of reliance on the old rule, and (3) the effect on the administra*566tion of justice of retroactive application” (People v Favor, supra at 262 [internal quotation marks and citation omitted]; see also People v Mitchell, supra at 528; People v Reilly, supra at 100). In my view, the analysis of the first two factors undertaken by the Court of Appeals in Policano applies equally to nonfinal cases and militates against an application of the new rule of law to cases on direct appeal.
With respect to the pivotal first factor, the Court of Appeals clearly explained that the purpose of the new interpretation “is to dispel the confusion between intentional and depraved indifference murder, and thus cut off the continuing improper expansion of depraved indifference murder” (Policano v Herbert, supra at 603). Indeed, the stated goal of this new interpretation “is to ‘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’ ” (id. at 603-604, quoting People v Suarez, supra at 217 [G.B. Smith, Rosenblatt and R.S. Smith, JJ., concurring] [emphasis added]).* Moreover, in my view, those who committed vicious crimes and were then charged and convicted of depraved indifference murder under the law as it existed at the time of their trials and convictions are equally unattractive “candidates” for reversal of their convictions on direct appeal such that nonretroactivity presents “no danger of a miscarriage of justice” (Policano v Herbert, supra at 604).
Furthermore, it is undeniable that prosecutors have relied extensively on “Register’s objectively determined degree-of-risk formulation when making their charging decisions” (id.; see generally People v Martello, supra at 652). Given such reliance, applying post-Sanchez case law to cases on direct appeal “would work a substantial burden on the administration of justice and could affect a large number of cases currently pending on . . . appellate court dockets” (People v Martello, supra at 652). Inasmuch as defendant was charged and properly convicted under the former law, I would affirm.
Ordered that the judgment is modified, on the law, by reducing defendant’s conviction of murder in the second degree to manslaughter in the second degree and vacating the sentence imposed thereon; matter remitted to the County Court of *567Schoharie County for resentencing; and, as so modified, affirmed.
Notably, three members of the Court of Appeals have expressed an “expectation], or at least hope, that the rule embodied in [post-Sanchez case law] will be applied prospectively, and that any impact on already completed prosecutions can be avoided” (People v Suarez, supra at 217 [G.B. Smith, Rosenblatt and R.S. Smith, JJ., concurring] [emphasis added]).