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PEOPLE v. MARTINEZ

No. 190.

20 N.Y.3d 971 (2012)

2012 NY Slip Op 8668

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. HECTOR MARTINEZ, Appellant.

Court of Appeals of New York.

Decided December 18, 2012.

Attorney(s) appearing for the Case

Stanley E. Neustadter , New York City, for appellant.

Cyrus R. Vance, Jr. , District Attorney, New York City ( Martin Foncello and Vincent Rivellese of counsel), for respondent.

Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ and SMITH concur; Judge SMITH concurs in a separate opinion; Judge PIGOTT dissents in an opinion.

OPINION OF THE COURT

MEMORANDUM.

The order of the Appellate Division should be modified, by vacating defendant's conviction of depraved indifference murder, dismissing that count of the indictment and remitting to Supreme Court for resentencing and, as so modified, affirmed, with leave to the People, if so advised, to present a charge of manslaughter in the first degree to a new grand jury.

On this direct appeal, defendant argues that the evidence...

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