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PEOPLE v. PAYNE

3 N.Y.3d 266 (2004)

819 N.E.2d 634

786 N.Y.S.2d 116

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. KENNETH H. PAYNE, Appellant.

Court of Appeals of the State of New York.

Decided October 19, 2004.

Attorney(s) appearing for the Case

Legal Aid Society of Suffolk, Inc., Appeals Bureau, Riverhead (Robert B. Kenney and Robert C. Mitchell of counsel), for appellant.

Kenneth H. Payne, appellant pro se.

Thomas J. Spota, District Attorney, Riverhead (Steven A. Hovani and Anne E. Oh of counsel), for respondent.

Chief Judge KAYE and Judges G.B. SMITH, CIPARICK and R.S. SMITH concur with Judge ROSENBLATT; Judge R.S. SMITH concurs in a separate concurring opinion; Judge READ dissents in another opinion in which Judge GRAFFEO concurs.

OPINION OF THE COURT

ROSENBLATT, J.

We once again address the crime of depraved indifference murder and where it fits within the Penal Law's statutory framework. In the appeal before us, defendant, armed with a 12-gauge shotgun, went to the deceased's home and shot him at point-blank range. Having acquitted defendant of intentional murder — the first count in a two-count indictment — the court...

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