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DEFENDANT FIRED INTO THE CAR AHEAD DURING A HIGH SPEED CHASE, DEPRAVED INDIFFERENCE MURDER AND ASSAULT CONVICTIONS AFFIRMED, TESTIMONY FROM THE FIRST TRIAL BY A WITNESS WHO HAD SINCE BEEN DEPORTED PROPERLY ADMITTED (SECOND DEPT).

The Second Department affirmed defendant’s conviction of depraved indifference murder and assault. During a high speed chase defendant fired a bullet into the car he was following. The driver, Singh, lost control and struck a trestle. One person, Arena, was killed, and Singh and another person, Weiner, were seriously injured. Defendant fled the scene. Defendant had been convicted of these crimes in 2003 and they were affirmed on appeal. But he obtained federal habeas corpus relief in 2013 and was retried in 2015.The sentencing court properly imposed a consecutive sentence for criminal possession of a weapon, which was not an inclusory concurrent count. One of the witnesses in the first trial had been deported and the court properly admitted his testimony at the second trial:

[T]he evidence proved beyond a reasonable doubt that the defendant recklessly engaged in conduct which created a grave risk of death to another person. The defendant engaged in a high-speed chase, in the course of which he fired a gun at the fleeing car, causing Singh, the driver, to lose control of that car. Following the crash, the defendant exhibited no signs of remorse for the results of his recklessness, and even went so far as to express his disappointment that Weiner had survived the crash. The direct and circumstantial evidence proved that the defendant deliberately engaged in a high-speed chase and shot at Singh’s car with an utter disregard for the value of human life, and thus, was legally sufficient to support the jury’s determination that the defendant acted with depraved indifference with respect to the death of Arena and the serious injuries sustained by Singh and Weiner … . …

The defendant’s contention that the County Court erred in admitting the testimony of Jose Vanderlinde from the first trial is without merit. Vanderlinde had testified at the defendant’s first trial but was deported before the second trial commenced, and was barred from re-entering the United States. Under these circumstances, the court properly admitted Vanderlinde’s testimony from the defendant’s first trial, as the prosecutor’s failure to produce the witness “was not due to indifference or a strategic preference for presenting [the witness’s] testimony in the more sheltered form of [trial] minutes rather than in the confrontational setting of a personal appearance on the stand … . People v Williams, 2018 NY Slip Op 04015, Second Dept 6-6-18

​CRIMINAL LAW (DEFENDANT FIRED INTO THE CAR AHEAD DURING A HIGH SPEED CHASE, DEPRAVED INDIFFERENCE MURDER AND ASSAULT CONVICTIONS AFFIRMED, TESTIMONY FROM THE FIRST TRIAL BY A WITNESS WHO HAD SINCE BEEN DEPORTED PROPERLY ADMITTED (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, DEFENDANT FIRED INTO THE CAR AHEAD DURING A HIGH SPEED CHASE, DEPRAVED INDIFFERENCE MURDER AND ASSAULT CONVICTIONS AFFIRMED, TESTIMONY FROM THE FIRST TRIAL BY A WITNESS WHO HAD SINCE BEEN DEPORTED PROPERLY ADMITTED (SECOND DEPT))/DEPRAVED INDIFFERENCE (CRIMINAL LAW, DEFENDANT FIRED INTO THE CAR AHEAD DURING A HIGH SPEED CHASE, DEPRAVED INDIFFERENCE MURDER AND ASSAULT CONVICTIONS AFFIRMED, TESTIMONY FROM THE FIRST TRIAL BY A WITNESS WHO HAD SINCE BEEN DEPORTED PROPERLY ADMITTED (SECOND DEPT))/PRIOR TESTIMONY (CRIMINAL LAW, TESTIMONY FROM THE FIRST TRIAL BY A WITNESS WHO HAD SINCE BEEN DEPORTED PROPERLY ADMITTED (SECOND DEPT))

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