The People, Respondent,v.Franklin McPherson, Appellant.BriefN.Y.October 8, 2013Nassau County Indictment No. 186N-2008 To Be Argued by: l'vfaureen McCormick Time Requested: 15 Minutes QCourt of ~ppeals $tate of J!ew ~ork THE PEOPLE OF THE STATE OF NEW YORK, Re.spondent, -against- FRANKLIN MCPHERSON, Defendant-Appellant. RESPONDENT'S BRIEF Tammy J. Smiley Jason R. Richards Assistant District Attorneys of Counsel Brief completedJanuary24, 2013 KATBLEENM RICE District Attorney, Nassau County Attorney for Respondent 262 Old Country Road Mineola, New York 11501 (516) 571-3800 FAX (516) 571-3806 TABLE OF CoNTENTS Page Table of Authorities .............................................................................................................. i Preliminary Statement ........................................................................................................... v Statement of Facts Introduction .................................................................................................................... 1 The Evidence at Trial The People's Case ..................................................................................................... 5 Defendant's Case .................................................................................................... 19 The Verdict and Sentence .......................................................................................... .20 The Appellate Division's Order Affirming Defendant's Judgment of Conviction .......................................................................................... 21 Justice Belen's Order Granting Leave to Appeal to this Court .............................. .25 Point One In a Case That Offered Virtually No Viable Defense, Trial Counsel Nonetheless Provided Meaningful Representation, Fully Satisfying Defendant's Constitutional Right to the Effective Assistance of Counsel. .......................................................................................................................... 28 A The Novel Standard of Meaningful Representation That Defendant Urges This Court to Adopt Contradicts Established Law and Would Impose Requirements on Defense Counsel That Are Unrealistic and Confusing .............................. 33 B. Under the Current Standard of Meaningful Representation, Defense Counsel Was Not Required to Make Meritless Legal Arguments ........................................................................................................ 38 C Defense Counsel Employed a Valid Strategy in Questioning the Identity of the Victim .......... ., .................................................................. 57 D. Counsel's Alleged Shortcomings Must Be Considered in the Context of the Entire Trial, During Which, the Record Demonstrates, Defendant Received Meaningful Representation ........................................................................... 66 Point Two Jettisoning the Court's Ru1e of Preservation in Favor of a Federal Model in Order to Review Defendant's Legal Insufficiency daims, Which Are Meritless in any Event, Wou1d Violate the State Constitution and Dinllnish the Truth-Seeking Function of Page the State's Crinllnal Courts ........................................................................................... 69 Conclusion ........................................................................................................................... .75 Certificate of Compliance TABLE OF AUTHORITIES Cases Alston v. Phillips, 703 F. Supp. 2d 150 (ED .N.Y. 2010) ............................................... 63 Hedrick v. True, 2004 WL 594989 (W.D. Va. 2004) ...................................................... 60 Jackson v. V~inia, 443 U.S. 307 (1979) .......................................................................... 41 Jameson v. Coughlin, 22 F.3d 427 (2d Gr. 1994) .......................................................... 35 Kyles v. W'hitley, 514 U.S. 419 (1995) .............................................................................. 30 Lord v. N.Y. Atty; General, 1991 WL 5174 (W.D.N.Y. 1991) ...................................... 60 Mapp v. Ohio, 367 U.S. 643 (1961) ................................................................................... 5 New v. United States, 652 FJd 949 (8th Gr. 2011) ....................................................... 35 People v. Acosta, 80 N.Y.2d 665 (1993) .......................................................................... 52 People v. Applegate, 176 AD.2d 888 (2d Dept. 1991) .................................................. 62 People v. Bailey. 19 AD.3d 431 (2d Dept. 2005) .................................................... 53, 54 People v. Baker, 58 AD.3d 1069 (3d Dept. 2009) .......................................................... 34 People v. Baker, 14 N.Y.3d 266 (2010) .......................................................................... ,58 People v. Baldi, 54 N.Y.2d 137 (1981) ............................................................................. 31 People v. Benevento, 91 N.Y.2d 708 (1998) ............................................................. 30, 32 People v. Benn, 68 N.Y.2d 941 (1986) ............................................................................. 32 People v. Borrell, 12 N.YJd 365 (2009) .......................................................................... 34 People v. Brown, 7 N.Y.2d 359 (1960) ........................................................................... 32 1 People v. Brown, 45 N.Y.2d 852 (1978) .......................................................................... 64 People v. Cade, 215 A.D.2d 772 (2d Dept. 1995) ........................................................... 54 People v. Carter, 7 N.Y.3d 875 (2006) ............................................................................. 51 People v. Danielson, 9 N.Y.3d 342 (2007) ............................................................... 35, 52 People v. Ennis, 11 N.Y.3d 403 (2008) .................................................................... 50, 51 People v. Feingold, 7 N.Y.3d 288 (2006) ..................................... 39-40, 42-43,45-47,73 People v. Feliciano, 17 N.Y.3d 14 (2011) ......................................................................... 35 People v. Flores, 84 N.Y.2d 184 (1994) ........................................................................... 66 People v. Geottiou, 38 AD .3d 155 (2d Dept. 2007) .................................................... 30 People v. Gilbert, 295 A.D.2d 275 (1st Dept. 2002) ...................................................... 65 People v. Gonzalez, 1 N.Y.3d 464 (2004) ....................................................................... 23 People v. Gray, 86 N.Y.2d 10 (1995) .................................................................. 69, 70-72 People v. I-Iafeez, 100 N.Y.2d 253 (2003) ....................................................................... 35 People v. Hawkins, 11 N.Y.3d 484 (2008) ............................................................... 70, 72 People v. Henry, 95 N.Y.2d 563 (2000) .......................................................................... 31 People v. Hobot, 84 N.Y.2d 1021 (1995) ......................................................................... 31 People v. Hollis, 255 A.D.2d 615 (3d Dept.) .................................................................. .71 People v. Johnson, 91 A.D.2d 327 (4th Dept. 1983) ...................................................... 54 People v. Lemma, 273 A.D.2d 180 (1st Dept. 2000) ...................................................... 65 People v. Main, 179 A.D.2d 953 (3d Dept. 1992) ..................................................... 53-54 11 People v. Maloy, 36 AD.3d 1017 (3d Dept.) ................................................................. .71 People v. Mcinnis, 179 AD.2d 781 (2d Dept. 1992) ..................................................... 54 People v. McPherson, 89 AD .3d 752 (2d Dept. 2011) .......................... 21-25, 42-43, 47 People v. Prindle, 16 N.Y.3d 768 (2011) ...................................................... 22, 26, 34,47 People v. Rivera, 71 N.Y.2d 705 (1988) .......................................................................... 31 People v. Rossey, 89 N.Y.2d 970 (1997) ......................................................................... .40 People v. Smith, 79 N.Y.2d 309 (1992) ........................................................................... 39 People v. Steinbe~, 79 N.Y.2d 673 (1992) ................................................................... .41 People v. Stultz, 2 N.Y.3d 277 (2004) ................................................................. 30, 31,39 People v. Turner, 5 N.Y.3d 476 (2005) ....................................................... 30, 32, 50, 51 People v. Valencia, 14 N.Y.3d 927 (2010) ........................................ .22, 26,34-35,43-46 People v. Valencia, 58 AD.3d 879 (2d Dept. 2009) ........................................... 34, 43-46 People v. Walker, 35 AD .3d 512 (2d Dept. 2006) ......................................................... 31 People v. Washington, 8 N.Y.3d 565 (2007) .................................................................... 40 People v. Welch, 108 AD.2d 1020 (3d Dept. 1985) ....................................................... 64 People v. Whipple, 97 N.Y.2d 1 (2001) ........................................................................... 71 Skelos v. Paterson, 13 N.Y.3d 141 (2009) ...................................................................... .71 Sparman v. Edwards, 154 F.3d 51 (2d Cir. 1998) ........................................................... 65 Strickland v. Washington, 466 U.S. 668 (1984) ......................................................... 29-32 111 United States v. Gjurashaj, 706 F.2d 395 (2d Cir. 1983) .......................................... 69-71 Statutes Criminal Procedure Law§ 440.10 ............................................................................. 64-65 Criminal Procedure Law§ 470.05(2) ................................................................................ 70 Penal Law§ 125.13(1) .......................................................................................................... v Penal Law§ 125.14 ...................................................................................................... 23, 42 Penal Law§ 125.25(2) ............................................................................................. v, 49, 63 Penal Law§ 220.03 .............................................................................................................. vi Penal Law§ 265.03(1)(b) ........................................................................................ vi, 51-52 Penal Law§ 265.15(4) ................................................................................................. 52, 55 Vehicle Traffic Law§ 1192 ................................................................................................ 23 Vehicle Traffic Law§ 1192(2)(a) ......................................................................................... v Vehicle Traffic Law§ 1192(3) ............................................................................................ vi Constitutional Provisions New York Constitution, art. I, § 6 .................................................................................... 29 New York Constitution, art. VI, § 3 ................................................................................ .70 United States Constitution, Amend. VI ........................................................................... 29 lV '!Court of ~ppeals ~tate of Jf!ew ~ork --···~ : ~ .. ··--- THE PEOPLE OF 1HE STATE OF NEW YORK, Respondent, -against- FRANKLIN McPHERSON, Defendant-Appellant. RESPONDENT'S BRIEF Preliminary Statement Following a jury trial before the CDunty CDurt, Nassau CDunty (Peck, J.), Defendant-Appellant Franklln McPherson (hereinafter "defendant") was convicted of murder in the second degree (Penal Law§ 125.25[2], vehicular manslaughter in the first degree (Penal Law§ 125.13[1], aggravated driving while intoxicated (Vehicle & Traffic Law [hereinafter "V. T.L."] § 1192[2][ a], operating a motor vehicle while under v the influence of alcohol (V.T.L. § 1192[3], criminal possession of a controlled substance in the seventh degree (Penal Law§ 220.03), and criminal possession of a weapon in the second degree (Penal Law§ 265.03[1][b]. On September 16, 2008, he was sentenced to concurrent terms of imprisonment, the longest of which was twenty-five years to life for murder in the second degree. Under the same indictment (Nassau County Indictment No. 186N-2008), codefendant Roman Taylor, Jr., was charged with criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03) and criminal possession of a weapon in the second degree (Penal Law§ 265.03[1][b]. Taylor's case was severed from defendant's on June 12, 2008, and the charges against him were subsequently dismissed. Upon defendant's appeal from his judgment of conviction, the Appellate Division, Second Judicial Department, affirmed the judgment (A-2-14).1 By order dated June 20, 2012, Associate Justice Ariel E. Belen granted defendant permission to appeal "to the extent that the following question is certified to the Court of Appeals: Was so much of the decision and order of this Court dated November 1, 2011, as, in affirming the judgment of the County Court, Nassau County, rendered September 16, 1 Numbers in parentheses preceded by "A:' refer to the page numbers of defendant's appendix; those preceded by "SA" refer to the page numbers of the respondent's supplementary appendix. The name of the testifying witness, if any, is included in all parenthetical citations to the trial record and is fully capitalized upon its first appearance in this brief. Vl 2008, determined that the defendant was not deprived of the effective assistance of counsel, properly made?" (A-1). Otherwise, leave to appeal was denied (id.). According to the records of the Department of Corrections and Community Supervision, defendant is incarcerated. Vll STATEMENT OF THE CAsE INTRODUCTION Shortly after 3:00 a.m. on October 19, 2007, defendant walked out of a Hempstead nightclub with his girlfriend and two other companions. Although he had been drinking alcohol for several hours, defendant did not appear to be dnmk. Indeed, it seemed to at least one of defendant's companions that defendant "could handle himself." Outside the nightclub, defendant became angry. Unable to find an object he had left by a fence near the entrance to the club, defendant repeatedly yelled, "I lost my shit!" Soon, his anger escalated to rage. Defendant retrieved a handgun from the trunk of his car and, after a loud argument with his girlfriend, fired the gun five times, despite the presence of a crowd nearby. Fortunately, neither his girlfriend nor any bystander was struck by the bullets. Before driving away, defendant yelled at his girlfriend and her friend, who were in another car, to "get the fuck out of here!" When the police arrived minutes later, defendant was already gone. By then, he had reached the Southern State Parkway. On the parkway, defendant drove in the wrong direction- westward in the eastbound lanes- for approximately five miles. He drove at a speed of at least seventy miles per hour. Defendant drove past "Wrong Way'' signs and signs facing backwards. The driver of a :Nlack truck blasted his air- hom at defendant for three to four seconds. Defendant drove into oncoming traffic, 1 facing the headlights of driver after driver who swerved out of his way. One driver avoided defendant's Lexus by mere inches. Yet, for five miles, defendant did not slow down or make any effort to avoid oncoming traffic. Finally, at 3:37a.m., as his headlights shone into the headlights of a Jeep driven by Leslie Burgess, defendant drove directly into the Jeep without even braking. The Jeep exploded and caught fire. Leslie Burgess's corpse was burned practically beyond recognition. Defendant's gun, forty-one rounds of ammunition, and a bag of crack cocaine were found inside his demolished Lexus. When defendant was extracted from the wreckage of his car, he was placed under arrest and transported to the hospital. According to the analysis of a blood sample drawn from defendant at the hospital, his blood alcohol content, over an hour after the collision, was 0.19. Following a jury trial, defendant was convicted of depraved-indifference murder, vehicular manslaughter in the first degree, aggravated driving while intoxicated, operating a motor vehicle while under the influence of alcohol, criminal possession of a controlled substance in the seventh degree, and criminal possession of a weapon in the second degree. On appeal to the Appellate Division, defendant argued that the evidence supporting his murder conviction was legally insufficient. Specifically, he claimed that his intoxication rendered him unable to form the mental state of depraved indifference to human life. Defendant was too drunk, he contended, to perceive or 2 understand the many obvious indications that he was driving against traffic on the parkway. Unaware that he was going the wrong way, defendant could not comprehend the grave risk posed by his actions, he argued, much less execute them with depraved indifference to human life. Defendant argued also that his conduct did not, in fact, create a grave risk of death to others. Defendant conceded that these claims were not preserved for appellate review but asked the court to consider them, nonetheless, in the interest of justice. In addition, defendant asserted that his trial attorney's failure to preserve the claims constituted ineffective assistance of counsel. By a three-to-one majority, the Appellate Division disagreed with defendant on his claims of legal insufficiency. The majority noted that "the testimony of the witnesses who observed the defendant speeding directly at them on the parkway, causing those witnesses to swerve in order to avoid a collision, demonstrates that the defendant's mental state was one of depraved indifference to human life" (A-4). The dissent was limited to this single legal sufficiency issue. Accordingly, Justice Ariel E. Belen "vote[ d) to modify the judgment ... by reducing the conviction of murder in the second degree to manslaughter in the second degree, and vacating the sentence imposed on that count and, as so modified, to affirm the judgment and remit the matter ... for resentencing on that count" (A-7). Thus, the court concluded, unanimously, that defendant received meaningful representation at trial, notwithstanding counsel's failure to preserve the foregoing legal 3 sufficiency issues. Likewise, the court found, unanimously, that defendant's other claims - i.e., that the search of defendant's car was unlawful, that the gun possession conviction was not supported by legally sufficient evidence, and that his sentence was excessive - were without merit. Justice Belen granted leave to appeal to this Court, even though the raison d'etre of his dissenting opinion - the prosecution's supposed failure to prove the mental state of depraved indifference - is unpreserved and, hence, beyond the scope of the Court's review. Indeed, the only issue properly reviewable by the Court is whether defendant received meaningful representation at his trial.2 Nevertheless, defendant now argues both that his trial attorney was ineffective and that his murder and weapon convictions were not supported by legally sufficient evidence. The latter arguments, defendant again concedes, were not preserved for appellate review, according to New York's long-settled rule of appellate preservation. Defendant urges the Court to jettison that rule and to adopt a new, more expansive standard of preservation, according to which, he argues, the legal sufficiency issues will not fall outside the scope of the Court's review. Similarly, defendant urges the Court to impose a new standard of meaningful representation that would require defense counsel to preserve all colorable claims of legal insufficiency, regardless of their merit, whenever the governing law is "in flux." 2 It is likely for this reason that Justice Belen limited his grant of leave to the question of whether trial counsel was effective. 4 Rather than breaking with its own precedent to make these two radical changes in the law, either of which on its own could disturb numerous convictions across the State, this Court should follow existing law- the product of extensive experience and manifest wisdom - and affirm the order of the Appellate Division. 'THE EVIDENCE AT ThrAL3 'THE PEOPLE'S CAsE Late on October 18, 2007, defendant's girlfriend, Crystal Green, invited her longtime friend, DELROY McCALLA, to accompany her, defendant, and defendant's cousin, Roman Taylor, to the Island Rock nightclub in Hempstead. McCalla was invited at the "last minute" and had never before met Taylor or defendant, who went by the name "Jamal." The four left Green's house, in Amityville, in two cars. Defendant and Taylor, in defendant's Lexus, followed McCalla and Green, in McCalla's car, onto the Southern State Parkway and to Hempstead, where they left the parkway at Exit 19 and drove to the Island Rock (McCalla: A-232-41, 243-44, 249). Defendant and McCalla parked their cars near each other in a parking lot in front of the nightclub (McCalla: A-244-46). 3 A Mapp hearing (Mapp v. Ohio, 367 U.S. 643 [1961] was held prior to trial to determine the admissibility of the gun, ammunition, and cocaine recovered from defendant's wrecked automobile. Because the issues raised before this Court do not relate to that hearing or the determinations of the suppression court, the hearing testimony has not been summarized here. 5 The four walked to the entrance of the nightclub and waited to be admitted. While they were waiting, defendant left the group for "a minute or so" and returned just before they went inside. McCalla was paying attention to his conversation with Green and did not notice where defendant went (McCalla: A-246-48). After a bouncer let the four enter the club, they stood together against a wall near the bar. McCalla consumed two alcoholic drinks; Green had two or three; defendant and Taylor drank "more than two" (McCalla: A-248-53). Shortly before they left the nightclub, McCalla noticed that Roman Taylor was "really drunk'' (McCalla: A253). Taylor looked "wasted" to McCalla (id.). By contrast, defendant did not appear intoxicated (McCalla: A-254-55). Indeed, he "seemed like he could handle himself" (McCalla: A254). Taylor put one arm over defendant's shoulder and the other over McCalla's shoulder as they helped him outside (McCalla: A-255-56). Defendant and McCalla took Taylor to a fence on the boundary of the parking lot. Leaning against the fence, Taylor slowly slid down until he was seated on the ground (McCalla: A-256-59). Defendant briefly walked away from the others and looked down toward the ground alongside the fence. When he returned, as McCalla and Green were helping Taylor to his feet, defendant told Green, "I lost my shit" (McCalla: A-259-60). Defendant was angry and started yelling. Three times he repeated, "I lost my shit!" or words to that effect (McCalla: A-260-65). 6 When the four reached defendant's Lexus, defendant, McCalla, and Green put Taylor in the back seat. McCalla went to his car and moved it belllnd defendant's (McCalla: A-265-68). Defendant went to the trunk of the Lexus and opened it. According to McCalla, he appeared to be "looking for something in his trunk'' (McCalla: A-269). Because defendant's back was turned toward McCalla, he could not tell what defendant took out of the trunk Next, defendant walked to the front passenger seat of the Lexus, leaving the trunk open. Sitting in the front passenger seat of his car, defendant looked down into his lap and then up again (McCalla: A-270-72). Meanwhile, Green stood nearby, talking to - and arguing with - defendant before walking over to McCalla, who was then leaning against the hood of his car. McCalla told Green that it was "time to go home" and tried to drag her into his car. Bystanders approached the two, threatening to call the police if McCalla did not let go of Green. McCalla, who was on parole4 and wanted no trouble with the police, let Green go. She walked back to defendant to continue their argument. Green started yelling at defendant and pulled on his arm once or twice (McCalla: A-272-76). McCalla called out to Green one more time before getting into his car. l-Ie was sitting there for less than a minute - disappointed in himself, tlllnking that he should 4 M:cCalla was convicted of selling crack cocaine and was sentenced to two and a half years in prison. While incarcerated, he successfully completed the SHOCK program and was released after serving nine months of his sentence. M:cCalla was still on parole at the time of defendant's trial and was subpoenaed to testify (McCalla: A-235-37). 7 not have endangered his parole by going to the nightclub - when he heard three gun shots. McCalla ducked. When he looked up seconds later, McCalla saw that defendant and Green were still arguing. Green was saying that she wanted to go. When defendant walked away from her, Green started to follow him, but then came to McCalla's car (McCalla: A-276-79). After getting into the car, Green tried to get out again, but McCalla pulled her back inside. Defendant, who seemed angry, told McCalla to "get her the fuck out of here!" (McCalla: A-279-80). Defendant had his hands together over the crotch of his pants, but McCalla could not see anything in defendant's grasp because McCalla "couldn't see his hands properly" (McCalla: A- 280). McCalla drove out of the parking lot with his tires screeching and took Green home (McCalla: A-280-84). Meanwhile, at approximately 3:15 a.m. on October 19, 2007, BARBARA DeRISI, who was working nearby as a dispatcher for the Hempstead Fire Department, heard multiple gunshots and the sound of tires screeching. DeRisi called a police dispatcher and reported the gunshots (DeRisi: A-176-81). A bouncer at the Island Rock, KEVIN WHEELER, also heard gunshots at approximately 3:15 a.m. Wheeler promptly called 911 to report the gunshots, which came from the parking lot where defendant and McCalla had parked their cars. There were many people outside the nightclub at that time, and Wheeler directed them to get inside (Wheeler: A-211- 16). 8 At 3:20 a.m., Police Officer DIDIER CASSAGNOL of the Hempstead Police Department ("HPD") received a call in his patrol car about shots being fired in the vicinity of the Island Rock Officer Cassagnol drove to the adjacent parking lot, where he found five nine-millimeter shell casings. The shell casings were gathered, bagged, and stapled to a case report. Four other HPD vehicles also responded to the call (Cassagnol: A-286-90). There was still a line to get into the nightclub and twenty-five to thirty people were in the vicinity (Cassagnol: A-290-92). Although Cassagnol and his fellow police officers attempted to interview these bystanders, no one provided information about the gunshots (Cassagnol: A-291). Minutes later, at 3:30a.m., RICARDO BRUNO was driving a ten-wheel Mack truck for his employer, the Intercounty Paving Construction Company ("IPCC''), on the Southern State Parkway. Bruno was helping to clean the parkway in connection with a paving job. The truck was equipped with a flashing orange light, which was turned on at the time, and an air-hom like those generally found in tractor-trailer trucks (Bnmo: A-419-24). Bruno was driving the truck at approximately forty-five miles per hour in the far-right- or "slow"- eastbound lane between Exits 18 and 19. In the distance, near Exit 19, Bnmo noticed headlights. As they became brighter, Bnmo realized that they belonged to a car that was driving the wrong way- west in the eastbound lanes - toward hin1. Bruno took his "foot off the gas and got ready for impact or ... to swerve off the road" (Bnmo: A-427). 9 As the car came closer, Bruno saw that it was in the far-left- or "fast"- lane, not in his lane. To warn the driver that he was travelling in the wrong direction, Bruno reached up and pulled the cord that sounded the truck's air-hom (Bruno: A- 423, 436-37). He held onto the cord for three or four seconds (Bruno: A-437). As the car passed him without slowing down or moving out of the far-left lane, Bruno noticed that it was a sedan traveling at approximately seventy to seventy-five miles per hour (Bruno: A-429-31, 436-37). Bruno left the parkway at the next exit, Exit 19, turned around and proceeded west until he reached the construction zone near Exit 17 and told his foreman, PETER lROVATO, about the wrong-way driver (Bruno: A-437-39). Prior to Bruno's arrival, Trovato had been standing close to the middle of the parkway between Exits 17 and 18, explaining to other IPCC employees what needed to be done next as they paved the westbound lanes between Exits 15 and 19. They were gathered in the construction zone just north of the concrete barrier that divided the westbound from the eastbound lanes. The construction zone was illuminated by thirty-two-feet-taillight towers that were placed every hundred and twenty feet. The towers were extremely bright - bright enough to "light up" both sides of the parkway (Trovato: A-512-15, 521-24). While Trovato was standing near the concrete barrier, a silver-colored car traveling at seventy miles per hour or faster drove by the group (which did not include 10 Bruno, who was still on his way to the site) on the opposite side of the barrier. The car was going the wrong way- west in the eastbound "fast" lane adjacent to the barrier (Trovato: A-515-18, 525-27). "[T]he wrong person is going to get killed today," Trovato remarked to his colleagues, meaning "[i]t wasn't going to be the [wrong-way] driver" (Trovato: A-518). At around 3:30a.m., TIIEODORAS BANTILESKAS was driving in the far- right eastbound lane of the Southern State Parkway. Bantileskas was near Exit 17 (west of Trovato and Bruno) when he saw a Lexus traveling west in the eastbound lanes at over seventy miles per hour. The car was driving directly toward him and Bantileskas had to veer onto the shoulder to avoid a collision (Bantileskas: A-3 86-402, 406). After the Lexus had passed, in his rear-view mirror Bantileskas saw two eastbound cars traveling near each other behind him. The cars were forced to veer in opposite directions to avoid the Lexus, which drove between them without slowing down or altering its course (Bantileskas: A-402-05). Bantileskas called 911 to report the wrong-way driver (Bantileskas: A-397, 409-11). After seeing the silver car driving westward in an eastbotmd lane, Peter Trovato called an inspector and asked him to relay information about the wrong-way driver to the State Police. When he noticed a State Trooper leaving the area in his patrol car in pursuit of the silver car, Trovato followed in his own vehicle. Near Exit 15, Trovato saw a car stopped next to the median. Trovato stopped his vehicle to warn the 11 occupants of the car to move out of traffic (Trovato: A-519). Inside the car were two women and a baby. The women were crying "hysterical[ly,] ... saying that there was a car that almost hit them" (id,). Trovato told the driver to move her car before she was hurt (Trovato: A-520). Next, he called his supervisor and told him, "there [is] a car going the wrong way, I think there's going to be an accident" (Trovato: A-520-21). Between Exits 14 and 15, EDWARD SCJ-IULZE, an off-duty Sergeant in the New York City Police Department, was driving in the left-most eastbound lane when he saw a car driving the wrong way, coming straight at him "at a very, very high rate of speed" (Schulze: A-535). Schulze turned "violently" to the right to get out of the way, which almost caused his car to roll over (Schulze: A-535-36). The oncoming car did not slow down or make any effort to get out of the way (Schulze: A-548). Schulze heard a "loud roar" as the car passed, missing his car by mere "inches" (A-536, 539). After the shock of what had happened subsided, Schulze thought, "[t]here's someone behind me that's going to get killed" (Schulze: A-537). He immediately called 911 on his cell phone (Schulze: A-536-37). Meanwhile, ANTHONY MENNELLA and JAMES WHITAKER were driving home from a Manhattan nightclub. Mennella was driving Whitaker's SUV in the far-left eastbound lane near Exit 13; Whitaker was sitting next to him in the front passenger seat; a third friend was asleep in the back seat. A white Jeep Grand 12 Cherokee was three or four car lengths ahead of them in the same lane (Whitaker: A- 22-24; Me1111ella: A-558-60). Suddenly, the Jeep in front of them exploded with a loud bang, showering debris and what appeared to be antifreeze all over \Xi'hitaker's SUV (Whitaker: A-23- 25; Me1111ella: A-560-61). Me1111ella swerved hard to the right, into the center lane, and the vehicle started "fishtailing" as it went through the debris.5 Bits of metal and plastic were hitting the SUV with so much force that some of the debris pierced the vehicle's front grill and destroyed an air-compressor in the engine compartment. For about a quarter mile, Me1111ella could not regain control over the vehicle. Finally, the SUV stopped sliding and Me1111ella pulled over to park on the shoulder near Exit 13 (\Xi'hitaker: A-2 4-26; Me1111ella: A-561-64). Me1111ella and Whitaker got out of their vehicle and ran back toward the site of the explosion. \Xi'hen they came over a hill, they saw that the Jeep had rolled over onto the driver's side and the engine compartment was on fire. A demolished silver Lexus was nearby. Me1111ella kicked in the windshield of the Jeep while \Xi'hitaker jumped on top and looked through the passenger-side window to see if any survivors were inside (\Xi'hitaker: A-27-29; Me1111ella: A-571-72). He could see only speakers, compact discs, and other items scattered inside the Jeep (Whitaker: A-28). The men looked through 5 BRIAN PEREZ, who was driving behind Mennella and Whitaker, in the center eastbound lane, saw their SUV fishtailing after the Jeep ahead suddenly flew from the left-most, "fast'' lane to the shoulder (Perez: A-528-32). 13 the rear window and unsuccessfully tried to get into the vehicle through the rear hatch (Whitaker: A-31; Mennella: A-575). Soon they were joined at the "chaotic" crash scene by Mla-IAEL KILLARNEY (Killarney: SA-26; Mennella: A-577), an off-duty New York City Fire Marshall who was driving on the parkway and pulled over just after the crash. No response carne when the men yelled into the Jeep, "Is anybody in there?!" They decided that the driver had probably been ejected by the force of the crash (Whitaker. A-28; Killarney: SA-26; Mennella: A-572). The men ran over to the Lexus, which was facing west in the far-left eastbound lane and turned at an angle into the concrete barrier in the middle of the parkway (Whitaker: A-29; Mennella: A-572). They found defendant, unconscious, in the driver's seat and a passenger in the back seat.6 The smell of alcohol was coming from the Lexus (Mennella: A-574). Trooper ANTHONY MUNOZ of the New York State Police ("NYSP") arrived at the scene at 3:38 a.m. (Munoz: SA-54-55). He was the first police or emergency medical personnel to arrive at the crash scene (Munoz: SA-55; Whitaker. A-32). By then, the overturned Jeep Grand Cherokee was fully engulfed in flames (Munoz: SA-55). In the silver Lexus, defendant was semi-conscious and unresponsive. He was trapped in the driver's seat by the steering column and dashboard, which the 6 W'hereas Mennella was able to identify defendant in court as the driver (A-573), W'hitaker could not remember what the driver looked like (A-30-31). 14 force of the crash had pushed against his lap. Roman Taylor was lying on the back seat, conscious but injured (Munoz: SA-58-60). Munoz also encountered two civilians at the scene - Michael Killarney and Anthony Mennella, who was frantic (Munoz: SA- 56). Soon, in addition to Trooper Munoz, other police officers were at the crash scene, including Trooper EDWARD GillESPIE, Trooper KENNETH GEIN, and Captain JAMIE KAMINSKY. Emergency medical and fire units also arrived (Munoz: SA-60-61; Kaminsky: A-76-77). Captain Kaminsky ordered a search of the area near the overturned Jeep to ensure that no occupant of the vehicle had been ejected. Fire fighters were putting out the fire that had consumed the vehicle. Munoz and others searched the nearby tree-line for three to five minutes but found no one (Munoz: SA- 61-63; Kaminsky: A-86). RICHARD Sa-IREIBER, of the Elmont Fire Department, arrived at the scene and saw the Lexus against the concrete divider in the middle of the parkway. The driver, pinned inside the Lexus, was groggy but conscious (Schreiber: SA-8). All four doors of the Lexus were removed and its roof was cut away to allow the extraction of the driver (Schreiber: SA-13-14). GARY FERRUCCI, an off-duty detective who was serving as a volunteer emergency medical technician with the Valley Stream Fire Department, soon arrived at the scene and assisted other emergency personnel in getting defendant out of the 15 wrecked Lexus. When he was within approximately ten inches of defendant's face, Ferrucci smelled alcohol on his breath (G. Ferrucci: SA-106-08). Trooper Gein and BRIAN FERRUCO, an ambulance medical technician, also smelled alcohol on defendant's breath (B. Ferrucci: SA-117; Gein: A-327-28). Meanwhile, after twenty to thirty minutes of battling the fire that had consumed the Jeep, fire fighters finally succeeded in dousing the flames, which at one point were so hot that Schreiber was unable to get closer than twenty to forty feet away (Schreiber: SA-7, 11-12). After the fire was extinguished, a charred body could be seen inside the Jeep (Schreiber: SA-14-15; GEORGE GOODWIN: SA-85; Gein: A-330). Though he was unable to ascertain the sex or race of the victim, emergency medical technician George Goodwin saw obvious mortal wounds sufficient to pronounce the victim dead at the scene (Goodwin: SA-85-87). After he was extracted from the wreckage of his car, defendant was placed under arrest (Munoz: SA-64) and transported to South Nassau Community Hospital (B. Ferrucci: SA-119-20). At the hospital, at 4:49 a.m., a blood sample was drawn from defendant (Munoz: SA-67). The chemical analysis of the sample revealed that defendant's blood alcohol content ("BAC') was 0.19 (A-132-33). For a man of defendant's relatively large build - he was 6'2" and weighed 210 pounds (GARY BEDELL: SA-153) - a BAC of 0.19 indicates that the subject has the equivalent of 16 eleven to twelve drinks m his system (Dr. WILLIAM O.DSSON [forensic toxicologist]: A-140). Following defendant's removal from the wrecked Lexus, Captain Kaminsky, Trooper Gillespie, and Investigator :MICHAEL MARIN searched the car and recovered the following evidence: (1) a nine-millimeter, semiautomatic Highpoint pistol; (2) forty-one nine-millimeter bullets; and (3) a small plastic bag containing an off-white, chunky material that was later determined by Detective DANIEL DeCASTRO to be 0.395 grams of cocaine (Gillespie: A-57-63; Kaminsky: A78-87; Marin: A-95-106; DeCastro: SA-126-27). Subsequently, on the basis of a microscopic comparison of the shell casings produced by a test-firing of the gun with those recovered from the first crime scene, Detective-Sergeant ROBERT NEME1H, an expert in firearms identification, positively matched the gun from defendant's car to the shell casings found outside the Island Rock Defendant's nine-millimeter Highpoint pistol was the gun that fired the shots outside the nightclub (Nemeth: A- 297-310). Driving in the wrong direction for five miles from Exit 19 to Exit 13 on the parkway, defendant passed eight signs reading, "WRONG WAY," written in white lettering against a red background. Additional indications, among many, that he was driving in the wrong direction during those five miles were the blank, gray backs of twenty-one very large signs intended for eastbound drivers, which from defendant's 17 perspective would have been fringed by white light illuminating the other side ( Gein: A-350-55). Trooper GEORGE VARGHESE, a NYSP collision reconstructionist, closed a section of the Southern State Parkway and recorded a nighttime video of what a wrong-way driver would see travelling west in the eastbound lanes from Exit 19 to Exit 13. According to Varghese, it would have taken defendant 4.28 minutes to drive the five miles between these exits at seventy miles per hour. Varghese's analysis of the Lexus's brake-light filaments and marks on the pavement at the crash scene provided no indication that defendant applied his brakes at the end of the five miles, in the seconds just before the collision (Varghese: A-457-90, 498-500; Bedell: SA-135-53). On the morning of October 19, 2007, when NYSP Investigator Gary Bedell was called to the crash scene, he too could not tell whether the body inside the Jeep was a man or a woman. Bedell went to the address in Amityville where the Jeep was registered to Wanda Creighton. He learned from Creighton that she had lent her car to her fiance, Leslie Burgess, on the night before and that she had been waiting for him to return from the city, where he was working a second job as a disc jockey (Bedell: SA-131-35; PATRIOABURGESS: SA-95). Leslie Burgess was forty-four years old on October 19, 2007. He and Creighton were living together in Amityville, where Burgess was a father to six children - two of 18 his own and four of G-eighton's. Leslie Burgess and Wanda G-eighton were to be married in December 2007 (P. Burgess: SA-94-95). That night, Patricia Burgess, the victim's sister, went to the Medical Examiner's office in Nassau County, where she identified the body of her brother. Although the rest of his body was burned beyond recognition, Patricia recognized a wrinkle on his forehead "like a frown, an expression he has on his face; it was there" (P. Burgess: SA-97). Dr. GERARD CATANESE, a Nassau County Deputy Medical Examiner, performed an autopsy on the body of Leslie Burgess. The corpse was sixty-three inches long (5'3"). Burgess may have been taller in life. His remains probably shrank in the fire that caused burns to ninety percent of his body and significant charring. Because there was no soot found in his lungs, Burgess "maY' have died before the fire reached him. The autopsy revealed that all of the victim's ribs, as well as his sternum and pelvis, were broken. There was significant damage to Burgess's heart, liver, and other internal organs. The cause of the victim's death was blunt force trauma (Catanese: SA-87-92). DEFENDANT'S CAsE Defendant presented no witnesses or other evidence on his behalf. 19 'THE VERDICT AND SENTENCE The jwy found defendant gilllty of depraved-indifference murder, first-degree vehicular manslaughter, aggravated driving while intoxicated, operating a motor vehicle while under the influence of alcohol, seventh-degree criminal possession of a controlled substance, and second-degree criminal possession of a weapon. Defendant appeared for sentencing on September 16, 2008. The prosecutor urged that the prison term imposed for the murder conviction be ordered to run consecutively to the term imposed for his weapon conviction because the crime of second-degree criminal possession of a weapon was completed before defendant entered the parkway driving in the wrong direction (SA-188-91). Defense counsel, by contrast, argued that defendant's crimes constituted "one continuous act of depravity," for which consecutive sentences were not appropriate (SA-195). In a ruling that adopted defense counsel's argument, the court found, for sentencing purposes, that "the state of mind of depravity commenced with the firing of the weapon ... " (SA-203). Accordingly, the court sentenced defendant to the following concurrent terms of imprisonment: twenty-five years to life for murder in the second degree; five to fifteen years for vehicular manslaughter in the first degree; one year for aggravated driving while intoxicated; one year for operating a motor vehicle while under the influence of alcohol; one year for criminal possession of a controlled substance in the 20 seventh degree; and, fifteen years, to be followed by five years of post-release supervision, for criminal possession of a weapon in the second degree (SA-203-06). THE APPELLATE DIVISION'S ORDER AFFIRMING THE JUDGMENT OF CoNVICTION On November 1, 2011, a panel of the Appellate Division, Second Judicial Department, affirmed defendant's judgment of conviction by a vote of three to one. After acknowledging that defendant's claims of legal insufficiency were not preserved for appellate review (A-3), the court held, pursuant to its interest-of-justice jurisdiction, that defendant's murder and weapon convictions were, in any event, supported by legally sufficient evidence (A-3-4, 6). Regarding the murder conviction, the court explained: "We disagree with our dissenting colleague's view that there was no evidence that the defendant deliberately and purposefully proceeded the wrong way down the parkway, in recognition of the grave risk to human life, and with utter disregard for the consequences" (A-4). Such evidence was provided, the court noted, by "the testimony of the witnesses who observed the defendant speeding directly at them on the parkway, causing those witnesses to swerve in order to avoid a collision" (ill,). Regarding defendant's assertion that his intoxication rendered him unable to form the mental state of depraved indifference to human life, the court ruled that the evidence showed, to the contrary, that defendant was coherent and very much aware 21 of his surroundings (A-4). For example, the court observed, defendant was able to help Roman Taylor, who, unlike defendant, was noticeably intoxicated, to walk out of the nightclub (id.). Moreover, there was testimony that defendant appeared to be in full control of his faculties, despite the relatively high alcohol content of his blood (id.). In support of its ruling that defendant was not too intoxicated to be depravedly indifferent, the court held that, in the context of an allegation that a driver operated his vehicle with depraved indifference to human life, "statutory intoxication is not dispositive on the issue of whether a defendant was capable of forming the requisite mens rea" (A-4). The court stressed that in this case, as in other precedents, including People v. Prindle, 16 N.Y.3d 768 (2011), and People v. Valencia, 14 N.Y.3d 927 (2010), "the nature of the evidence is crucial," because "these cases are all fact determinative" (A-5). Accordingly, the majority noted its agreement with the dissent that a reviewing court could find, "when presented with a proper factual predicate" (id.), that an intoxicated defendant accused of acting with depraved indifference while operating a motor vehicle was not guilty of depraved-indifference murder as a matter of law (id.). "However," the majority continued, "we part with the dissent in that we disagree that the facts in this case mandate an acquittal as a matter of law'' (id.). Thus, the court reached the crux of its disagreement with dissenting Justice Belen: "We do not believe that Prindle and Valencia stand for the proposition that a 22 defendant who is per se intoxicated (see V.T.L. § 1192), and drives into oncoming traffic resulting in a fatality, can never be found guilty of depraved-indifference murder or assault because such a defendant is incapable of forming the requisite mens rea" (A-5). Next, after acknowledging "that it is unusual for one to be guilty of depraved indifference murder when driving while intoxicated because of the [above-cited] decisions of the Court of Appeals" (A-6), the court found that the recent enactment of a law intended to address vehicular homicides, Penal Law§ 125.14 (aggravated vehicular homicide), did not mean that the Legislature was attempting to "rectify a purported legal impossibility of a drunk driver being convicted of depraved- indifference murder'' (A-6 [emphasis in original]. Instead, section 125.14 "was intended to address drunk drivers who kill, but act with a mental state that does not rise to the level of depraved indifference to human life" (A-6). The court then observed that this defendant need not have been suicidal to have acted with depraved indifference, notwithstanding the dissent's assertion to the contrary. Gting People v. Gonzalez, 1 N.YJd 464, 467 (2004), the court emphasized that "a rational trier of fact would not need to find that the defendant had a specific, conscious intent to cause a certain result" (A-6). 23 that: Finally, in addition to affirming defendant's murder conviction, the court held • the evidence was legally sufficient to establish defendant's gWlt of criminal possession of a weapon in the second degree and the verdict as to that crime was not against the weight of the evidence (A-6); • the hearing court properly denied defendant's motion to suppress the evidence seized from his vehicle (id.); • the defendant was not deprived of the effective assistance of counsel (id,); and • the sentence imposed was not excessive (A-7). The entirety of Justice Belen's lengthy dissent was devoted to explicating his conclusion that the evidence was not legally sufficient to establish defendant's depraved indifference (A-7-14). Emphasizing that defendant "had a blood alcohol content more than twice the legal limit," the dissenting Justice asserted that the prosecution had produced at trial "no evidence" demonstrating that defendant "understood that he was driving the wrong way down the parkway prior to the head- on collision, with utter disregard for the consequences, as might be evident with, for example, evidence that the defendant's vehicle continued on its course after colliding with an object or other vehicle" (A-9). Hence, there was "nothing from which a jury could reasonably infer that the defendant possessed the mens rea necessary for depraved indifference: a tragic combination of both awareness and total disregard for the fact that he was driving at high speed the wrong way down the parkway" (A-11). 24 Justice Belen did not take issue with any other holding by the majority. Indeed, he voted to affirm the judgment after modifying it, in the interest of justice, by reducing the murder conviction to manslaughter (A-7). Nowhere in his dissent did Justice Belen criticize, or even mention, any aspect of counsel's representation of defendant at trial. Nor did he suggest that defendant's trial was unfair in anyway. TUSTICE BELEN'S ORDER GRANTING LEAVE TO APPEAL TO 'THis CbURT - On November 23,2011, defendant submitted an application to Justice Ariel E. Belen of the Appellate Division requesting leave to appeal to this Coutt from the Appellate Division's decision and order of November 1, 2011. The motion was opposed by the respondent on the ground that futther review was not warranted because the sole topic of Justice Belen's dissenting opinion- the legal sufficiency of defendant's murder conviction - was not preserved for this Coutt's review. On all other topics, the respondent noted, the majority and dissent agreed. Moreover, the only issue properly reviewable by the Coutt, i.e., whether defendant received meaningful representation at trial, was not a novel issue or one about which the State's coutts required significant additional guidance. Over six months later, on June 20, 2012, Justice Belen issued an order purporting both to grant and to deny defendant's leave application (A-1). The order granted leave: 25 ... to the extent that the following question is certified to the Court of Appeals: Was so much of the decision and order of this Court dated November 1, 2011, as, in affirming the judgment of the County Court, Nassau County, rendered September 16, 2008, determined that the defendant was not deprived of the effective assistance of counse~ properly made? (id.). The order provided, further, "that the motion is otherwise denied" (id.). This appeal followed. Defendant now argues before this Court that his trial attorney provided constitutionally deficient representation - primarily on the ground that counsel should have preserved his current contention that the evidence supporting his depraved- indifference murder conviction was legally insufficient. Defendant's argument relies heavily upon two recent decisions by this Court that postdate defendant's trial: People v. Valencia, 14 N.YJd 927 (2010), and People v. Prindle, 16 N.Y. 3d 768 (2011). Trial counsel cannot be faulted for failing, in 2008, to anticipate these decisions. Defendant contends nonetheless that counsel should have seen Valencia and Prindle coming. In so doing, defendant ignores many other decisions by the Court holding that the failure to preserve a legal argument regarding an unsettled or evolving area of law does not - and cannot - constitute ineffective assistance of counsel. Thus, defendant's principal claim is without merit. In addition to his ineffective assistance claim, defendant again argues, just as he argued before the Appellate Division, that his murder and weapon convictions were 26 not supported by legally sufficient evidence. Acknowledging that these claims are, according to existing law, beyond the scope of this Court's review, defendant urges the Court to adopt a new standard of appellate preservation in order to reach the merits of the claims. However, defendant's proposed standard, modeled on federal law, would constitute a radical departure from the Court's own jurisprudence on appellate preservation and would undermine many important objectives of that jurisprudence by fundamentally changing the conduct of trials in the State's criminal cases. For these reasons, the Court should refuse to adopt defendant's proposed change to its well- established standard of appellate preservation and should refuse to review defendant's claims of legal insufficiency, which are without merit in any event. Thus, defendant fails to offer any firm legal basis for this Court to reverse the Appellate Division's order affirming his judgment of conviction. Without such a basis, a ruling by this Court in defendant's favor would be completely unwarranted. 27 POINT ONE IN A CAsE 'THAT OFFERED VIRTUAU Y No VIABLE DEFENSE, TRIAL CoUNSEL NONETHELESS PROVIDED MEANINGFUL REPRESENTATION, FULLY SATISFYING DEFENDANT'S CoNSTITUTIONAL RrGill TO THE EFFECTIVE AsSISTANCE OF CoUNSEL (ANSWERING DEFENDANT'S BRIEF, POINTS I AND II). Defendant now argues before this Court, just as he argued before the Appellate Division, that his trial attorney's representation was so deficient that defendant's constitutional right to the effective assistance of counsel was violated. Specifically, defendant alleges three errors by counsel, which, either singly or in combination, constitute grounds for a new trial, defendant contends. First, he argues, counsel disregarded a "clear cut and completely dispositive" legal issue when he failed to move to dismiss the murder charge on the ground that the evidence supporting the charge was legally insufficient (Defendant's Brief at 36, 45). Defendant contends that his trial attorney should have recognized that the proof of the following two elements was not legally sufficient: (a) defendant's mental state of depraved indifference to human life; and (b) that his actions created a grave risk of death to others (id. at 36-50). In the alternative, defendant contends that counsel was ineffective simply for failing to preserve these issues for appellate review, even if they were not, at the time of the tria~ clear-cut or dispositive, because the law was then "in a state of flux" (Defendant's Brief at 24). Defendant urges the Court to adopt a new standard of meaningful representation, according to which defense counsel would be 28 obligated, whenever the law is unsettled, to preserve every colorable legal sufficiency ISSUe. Second, defendant contends that counsel was ineffective for failing to move to dismiss or reduce the weapon possession charge, also on the ground of legal insufficiency. Finally, defendant claims that counsel was ineffective for "pursuing a defense strategy based on misidentification of the victini" (Defendant's Brief at 66). Because each of these alleged errors was, in fact, a reasonable decision by counsel under the circumstances, evincing valid legal and strategic considerations, and because the record shows that defendant received a fair trial due in no small part to his attorney's efforts on his behalf, defendant's complaints about his trial attorney are without merit. Only when viewed with the advantage of hindsight, in the light of the exacting standard that defendant now asks this Court to adopt, was counsel's representation of defendant in any way deficient. That novel standard imposes professional obligations that are both unrealistic and vague. Moreover, it would constitute a radical and unwarranted departure from the Court's jurisprudence on meaningful representation. The right to effective assistance of counsel in criminal proceedings is guaranteed by the Federal and New York Constitutions. See U.S. CbNST., Amend. VI; N.Y. CbNST., art. I, § 6. In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court adopted a two-pronged test for evaluating claims that trial counsel 29 was ineffective. First, "the defendant must show that counsel's representation fell below an objective standard of reasonableness." Id. at 688. Second, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." I d. at 694. Since then, the Omrt has explained that this "reasonable probability" - or prejudice prong- is established when counsel's errors "undermine confidence in the outcome of the trial." Kyles v. Whitley, 514 U.S. 419,434 (1995). New York has a similar, though somewhat broader, standard for evaluating ineffective assistance claims. Indeed, the Appellate Division has noted that "New York also employs a two-pronged test, with the first prong identical to its Federal counterpart." People v. Georgiou, 38 AD.3d 155, 160-61 (2d Dept.) (citing People v. Turner, 5 N.Y.3d 476, 480 [2005]. To determine whether a defendant has satisfied this first prong - under either the Federal or the State test - courts must assess counsel's performance without the distorting perspective of hindsight. See Strickland, 466 U.S. at 689; People v. Benevento, 91 N.Y.2d 708, 712 (1998). Instead of requiring full satisfaction of the prejudice prong of Strickland, however, New York courts "regard a defendant's showing of prejudice as a significant but not indispensable element in assessing meaningful representation." People v. Stultz, 2 N.Y.3d 277, 284 (2004). In determining whether trial counsel's performance has satisfied the second prong of the New York test, courts must assess the entire 30 factual and legal context of any alleged errors - including the degree of prejudice to the defendant. '"So long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation,' a defendant's constitutional right to the effective assistance of counsel will have been met." People v. Henry, 95 N.Y.2d 563, 565 (2000) (quoting People v. Baldi, 54 N.Y.2d 137, 147 [1981]. "What constitutes effective assistance is not and cannot be fixed with yardstick precision, but varies according to the unique circumstances of each representation." Baldi, 54 N.Y.2d at 146. A claim of ineffective assistance of counsel that lacks a showing of prejudice, however, should be viewed skeptically- even under New York law. Stultz, 2 N.Y.3d at 283-84. Moreover, under both Federal and State law, scrutiny of counsel's performance is highly deferential. To meet the "high bill-den of demonstrating that he was deprived of a fair trial by less than meaningful representation" (reople v. Hobot, 84 N.Y.2d 1021, 1022 [1995], a criminal defendant must overcome a strong presumption that counsel's representation was meaningful. See People v. Walker, 35 AD.3d 512, 512 (2d Dept. 2006); see also Strickland, 466 U.S. at 689. Indeed, it is incumbent on the defendant "to demonstrate the absence of strategic or other legitimate explanations" for counsel's alleged failures. People v. Rivera, 71 N.Y.2d 705, 709 (1988). Such a 31 demonstration represents substantially more than "mere disagreement with strategies and tactics that failed." People v. Benn, 68 N.Y.2d 941,942 (1986). Thus, New York's standard of "meaningful representation" is, in the abstract, "somewhat more favorable to defendants" than the prejudice-based Federal standard. Turner, 5 N.Y.3d at 480, 482. In practice, however, the two do not differ gready. The purpose of both standards is to ensure that the defendant receives a fair trial, "not necessarily a perfect one." People v. Benevento, 91 N.Y.2d 708, 712 (1998); see also Strickland, 466 U.S. at 689. Indeed, courts should not allow the criminal defendant to transform his disappointment with a conviction into a trial of his former lawyer '"on charges of incompetent representation."' Benevento, 91 N.Y.2d at 712 (quoting People v. Brown, 7 N.Y.2d 359, 361 [1960]. Here, defendant received a fair trial. His convictions had nothing to do with his counsel's performance (see Benevento, 91 N.Y.2d at 712) - and everything to do with the strength of the proof against him. Whether the federal or state test is applied to defendant's complaints about his trial attorney, it is clear that he enjoyed meaningful representation that fully satisfied his right to the effective assistance of counsel. Only tmder the new standard of meaningful representation proposed by defendant was trial counsel's representation anything other than thoroughly competent. That standard, however, cannot be adopted by this Court without contradicting many of its own prior decisions. 32 Thus, defendant's claims of ineffective assistance are without merit. Defendant has failed to meet his high burden of demonstrating the absence of strategic or other legitimate explanations for counsel's alleged mistakes and, hence, has fallen far short of overcoming the strong presumption that counsel's representation was meaningful. A THE NOVEL STANDARD OF MEANINGFUL REPRESENTATION 'THAT DEFENDANT URGES THis CbURT TO ADOPT CbNTRADICTS ESTABLISHED LAW AND WOULD IMPOSE REQUIREMENTS ON DEFENSE CbUNSEL 'THAT ARE UNREALISTIC AND CbNFUSING. Defendant asks this Court to rule that trial counsel "must be obliged to preserve all claims that have a reasonable chance of being recogrilzed by an appellate court during the period that the defendant's appeal is likely to remain pending" (Defendant's Brief at 24). Thus, according to defendant, whenever "the law is in a state of flux" (id.), a trial attorney's effectiveness depends upon his ability to make "reasonable" predictions about appellate outcomes in other cases with similar issues. Initially, defendant attempts to limit this novel standard by applying it only to "strong issues" (id.). But trial counsel generally is not in a position to determine what claims are "strong," or reasonably likely to be convincing to appellate courts, until the courts have actually recogrilzed them as such. In what seems to be an acknowledgment of this truism, elsewhere in his brief defendant abandons his effort to limit the standard, claiming instead that counsel has a duty to preserve all "colorable sufficiency claims" (id. at 24, 63). 33 The aim of defendant's argument is obvious. Defendant believes that two relatively recent appellate decisions vacating or modifying the convictions of defendant-drivers who at trial were found to be depravedly indifferent - People v. Valencia, 58 AD.3d 879 (2d Dept. 2009), aff'd, 14 N.Y.3d 927 (2010), and People v. Prindle, 16 N.YJd 768 (2011), each of which was issued while defendant's appeal was pending - mandate a favorable outcome in his case, notwithstanding the Appellate Division's disagreement with him on the significance of the cases. Although neither case had been decided at the time of defendant's trial, he appears to believe that his trial counsel somehow should have anticipated the decisions - if for no other reason than that the law was then "in a state of flux" (Defendant's Brief at 24). There are several problems with defendant's novel standard of meaningful representation. First and foremost, it conflicts with the Court's own jurisprudence. Indeed, it turns that jurisprudence on its head. This Court has consistently held that defense counsel's failure to raise a claim regarding an area of law that is unsettled does not amount to ineffective assistance of counsel. Under such circumstances, a motion asserting such a claim has "far from clear prospects." People v. Borrell, 12 N.Y.3d 365, 369 (2009). Counsel will not be deemed ineffective "for failing to raise an issue of such uncertain efficacy." Id.; see also People v. Baker, 58 AD.3d 1069, 1072 (3d Dept. 2009) (holding that counsel was not ineffective for failing to raise claim implicating "an area of law that has recently 34 changed, with courts struggling over the effects of such changes"), aff'd, 14 N.YJd 266 (2010). Accordingly, in People v. Danielson, 9 N.YJd 342, 350 (2007), the Court ruled that counsel was not constitutionally ineffective, at the defendant's 2004 trial, for failing to preserve an argument that the defendant's depraved indifference murder conviction arising from a one-on-one confrontation was legally insufficient in light of People v. Hafeez, 100 N.Y.2d 253 (2003). In Hafeez, this Court had decided, a year earlier, that a depraved-indifference murder conviction was legally insufficient because the evidence showed that the defendants' attack on their victim was intentional. Hafeez, 100 N.Y.2d at 259. Moreover, the Court has steadfastly refused to find fault with counsel's failure to preserve a claim where the claim was, as in this case, "novel and call[ed] for an extension of or change in - not an application of - existing law." People v. Feliciano, 17 N.YJd 14, 28 (2011); see also New v. United States, 652 FJd 949, 952 (8th Cir. 2011) ("[A]n attorney's failure to anticipate changes in the law does not constitute constitutionally ineffective assistance."); Jameson v. Coughlin, 22 F.3d 427, 429 (2d Cir. 1994) ("Nor can counsel be deemed incompetent for failing to predict that the New York Court of Appeals would later overrule the Second Department's reasonable interpretation of New York law."). To date, the Court has never explicitly ruled on the issue of whether voluntary intoxication can negate the mens rea of depraved indifference to human life. See Valencia, 14 N.YJd at 931 (Graffeo, J., 35 concurring) ("[T]he Legislature, which is entrusted with determining social policy and degrees of culpability, should resolve this perplexing question of whether intoxication, to whatever extent, functions as a defense to depraved indifference crimes."). Thus, the arguments that defendant faults his trial attorney for not raising were nothing if not novel. These unraised arguments would have called for an extension of, rather than a simple application of, the existing law on depraved-indifference murder. Contrary to the aforementioned precedents, which treat the uncertainty attending an unsettled area of law as a significant mitigating factor in assessing trial counsel's failure to preserve an argument pertaining to that area, defendant considers such uncertainty to be an aggravating factor. In effect, defendant's definition of meaningful representation would transform what is now viewed as a reasonable explanation for the failure to preserve a claim into its exact opposite, i.e., a compelling reason to preserve the claim. In such a manner, defendant seeks to turn the Court's established jurisprudence on its head. Such is the first and most glaring flaw in defendant's argument. But it is not the only one. The second major flaw in the standard of meaningful representation espoused by defendant is its utter impracticality. It imposes requirements on defense counsel that are virtually impossible to satisfy. According to defendant, trial counsel must ceaselessly monitor an enormous body of ever-changing state and federal criminal law in order to apprise himself of all 36 issues that are currently "in flux." Next, based upon his careful analysis of the most recent decisions on such issues, counsel must predict what appellate courts are likely to do next. In many cases, he may be unable to settle on a single probable outcome; perhaps counsel, nevertheless, will be able to imagine several likely alternative outcomes. Finally, when his own client goes to trial, counsel must be sure to preserve every argument arising from each of these likely alternatives. Thus, if defendant had his way, trial attorneys would be forced to transform themselves from merely informed advocates and counselors into professional legal analysts and prognosticators. Not infrequently, criminal trials would be interrupted by lengthy legalistic soliloquies of merely theoretical import. At the same time, the overall quality of lawyering at these trials would decline because counsel would be forced to dedicate substantial amounts of time, ordinarily spent formulating strategy and preparing for witness examinations, cross-examinations, summations, and the like, to exhaustive legal research. While it is probably true, in defendant's ideal world, that fewer defendants would complain that their lawyers had failed to preserve issues for appellate review, it is also likely that other important aspects of criminal trials would receive only cursory professional attentioiL Given these problems with defendant's novel standard, the Omrt should decline to change its current standard of meaningful representation. Defendant has 37 failed to demonstrate that such a change is needed for any reason beyond his own self-serving wishes in this case. B. UNDER TilE CURRENT STANDARD OF MEANINGFUL REPRESENTATION, DEFENSE CoUNSEL WAS NoT REQUIRED TO MAKE MERITLESS LEGAL ARGUMENTS. Defendant contends that his constitutional right to the effective assistance of counsel was violated, even under the Court's long-standing definition of meaningful representation, when his trial attorney failed to mal\:e two motions, each of which, defendant claims, was "clear-cut and completely dispositive" (Defendant's Brief at 62- 63). First, defendant argues that counsel should have moved for dismissal of the depraved-indifference murder count at the conclusion of the prosecution's case on the ground that the evidence supporting that charge was legally insufficient. Specifically, defendant claims that the evidence was insufficient to prove two elements of the murder charge: (a) that his mental state was one of depraved indifference to human life; and (b) that his actions created a grave risk of death to others. Second, defendant contends that his trial attorney also should have moved at that time "to dismiss or reduce the weapon possession count based on insufficient evidence that defendant possessed a loaded weapon" (Defendant's Brief at 63-64). If these arguments are without merit, defense counsel cannot be faulted for neglecting to raise them. A criminal defendant is not denied effective assistance of 38 counsel when his attorney fails to "make a motion or argwnent that has little or no chance of success." Stultz, 2 N.Y.3d at 287. A motion to dismiss the murder count for failure to prove defendant's depraved indifference to human life would have been meritorious only if the prosecution had neglected to present enough evidence to create an issue of fact regarding defendant's mental state. See generally People v. Smith, 79 N.Y.2d 309, 314 (1992). Because there was no such lack of evidence in the prosecution's case, defense counsel was not unreasonable in omitting to raise this legal sufficiency issue. Depraved indifference to human life is "a culpable mental state" that "is best understood as an utter disregard for the value of human life - a willingness to act not because one intends hann, but because one simply doesn't care whether grievous harm results or not." People v. Feingold, 7 N.Y.3d 288, 296 (2006) (internal quotation marks and citations omitted). "Often there is no direct evidence of a defendant's mental state and the jury must infer the mens rea circumstantially from the surrounding facts." Smith, 79 N.Y.2d at 315. Accordingly, "[t]he mens rea of depraved indifference to human life can, like any other mens rea, be proved by circumstantial evidence." Feingold, 7 N.Y.3d at 296. Defendant omits a crucial qualifying adjective when he claims that there was "no evidence" of his mental state. While there may have been no direct evidence of his mental state, defendant's depraved indifference was proven by ample 39 circumstantial evidence, from which "[a]ll reasonable inferences must be drawn in the People's favor." People v. Washington, 8 N.YJd 565, 570 n.2 (2007); see also People v. Rossey, 89 N.Y.2d 970, 971-72 (1997) ("[T]he test for appellate review on the issue of the legal sufficiency of the evidence is the same for both direct and circumstantial 'd ") ev1 ence .. For instance, the jury heard testimony concerning: (a) the shots that defendant fired immediately before driving away from the Island Rock and onto the parkway, going the wrong direction{ (b) the many "Wrong Way'' signs and other visual warnings that he passed during his five-mile drive against traffic on the parkway; (c) the blasting air-hom that a truck driver sounded in an attempt to stop defendant; (d) the experiences of several terrified motorists whose headlights shone directly into defendant's field of vision- even if it was limited to "tunnel" vision (dosson: A-144) - until each of them swerved out of his way, narrowly avoiding the same fate as that of Leslie Burgess; and (e) defendant's failure to brake or otherwise attempt to avoid his deadly collision with Burgess's vehicle. Although none of this proof was, like a confession, direct evidence of defendant's mens rea, it was nonetheless powerful circumstantial evidence from which a rational jury could infer that defendant acted with "utter disregard for the value of human life." Feingold, 7 N.Y.3d at 296. It was 7 In his dissenting opinion, Justice Belen quoted, approvingly and at significant length, from a commentary on depraved-indifference murder in which the author observed: "The defendant's emotional state before or after the crime, which was previously considered relevant to recklessness but not to 'depraved indifference,' is presumably now relevant to both mens reas" (A-11). 40 not unreasonable for the jury to conclude that defendant's actions were those of a man who simply did not care whether grievous harm resulted or not. I d. Certainly, the prosecution presented enough evidence at trial to make defendant's mental state an issue of factforthe juryto decide. At the heart of both defendant's current argument and Justice Belen's dissenting opinion below is an entrenched refusal to "draw reasonable inferences from basic facts to ultimate facts." Jackson v. Virginia, 443 U.S. 307, 319 (1979). For instance, it is a reasonable inference "that a person intended the natural and probable consequences of [his] act." People v. Steinberg, 79 N.Y.2d 673, 685 (1992). Accordingly, when a person walks or drives in a particular direction, it is reasonable to infer, except in very unusual circumstances, that the person intends to travel in that direction. When a person continues to drive against traffic for five miles without slowing or altering course - despite honking horns, bright lights, "Wrong Way" signs, swerving cars, and perilous near-misses- the inference that he does so intentionally is not only reasonable, it is virtually inescapable. Yet, according to Justice Belen, evidence "that the defendant intentionally drove in the wrong direction on the parkway" was "glaringly absent" from the prosecution's case (A-11). Such a conclusion can be reached only by utterly refusing to draw the kind of ordinary inferences that every person draws many dozens or 41 hundreds of times every day. Indeed, it would be virtually impossible to survive in a world where such inferences were anything but reasonable and highly reliable. Defendant asserts, incorrectly, that his murder conviction "is inconsistent with the New York statutory scheme" (Defendant's Brief at 58). In support of that assertion, he cites the advocacy of the New York District Attorneys Association for the enactment of legislation in 2007 creating the new crime of aggravated vehicular homicide (Penal Law § 125.14), a class B felony. Justice Belen also found this legislation significant, noting that the District Attorney of Nassau County had written the following in a letter in support of the bill: "This legislation is urgently needed and will remove the unjust gap between the vehicular manslaughter and the nearly unattainable murder charge." People v. McPherson, 89 A.D.3d 752, 761 (2d Dept. 2011). Both Justice Belen and defendant have read the enactment of the 2007 legislation as an indication that Feingold presents a bar to the prosecution of vehicular depraved-indifference murder, even though the District Attorneys Association stated that the purpose of the bill was to create "an appropriate charge for the most egregious circumstances short of depraved indifference." McPherson, 89 A.DJd at 761 (emphasis added). 42 Accordingly, the majority wrote in McPherson: Our dissenting colleague correctly notes that, in 2007, the Legislature created the new crime of aggravated vehicular homicide, a class B felony. We agree that the new crime - which was not in effect at the time of the incident sub judice - was intended to address drunk drivers who kill, but act with a mental state that does not rise to the level of depraved indifference to human life. We also acknowledge that it is unusual for one to be guilty of depraved indifference murder when driving while intoxicated because of the decisions of the Court of Appeals, previously cited, that limited its application. We also agree with our dissenting colleague that the new crime was not needed to rectify a pmported legal impossibility of a drunk driver being convicted of depraved indifference murder. A review of the legislative bill jacket supports this view. Id. (emphasis in original). Thus, the McPherson court rightly rejected the idea that the depraved-indifference statutes were now "inapplicable" to vehicular crimes in the wal\:e of Feingold. Justice Belen and defendant are wrong, also, in asserting that this case IS essentially identical to People v. Valencia, 14 N.Y.3d 927 (2010), in which this Court affirmed the Appellate Division's vacatur of the defendant's depraved-indifference assault conviction (58 A.D.3d 879 [2d Dept. 2009]. Both Valencia decisions were issued after defendant's trial and, therefore, strictly speaking are not relevant to this OJurt's assessment of trial counsel's performance. Nevertheless, a brief examination of the decisions is warranted here because of their considerable role in defendant's current argument. 43 Valencia was an intoxicated driver who drove on the wrong side of another Long Island parkway before plowing into oncoming traffic and injuring the drivers of two other cars. In his dissenting opinion, Justice Belen described Valencia as "factually indistinguishable from the instant case" (A-9). Sinlllarly, defendant now argues that Valencia "involves facts almost identical" to his case (Defendant's Brief at 30). Neither of these assessments is accurate. The facts proven to the jmy in this case and the facts of Valencia are not the same. They are different, and the differences are critical. For instance, the record here establishes that defendant committed an independent crime - possessing a loaded firearm and shooting it in a populated area - immediately before getting into his car and speeding onto the parkway in the wrong direction. Gmtrary to defendant's assertion that he "did not shoot toward the people in the parking lot" (Defendant's Brief at 44), there is, in fact, no evidence at all regarding the direction of defendant's shots. The record shows only that defendant shot the gun five times in the vicinity of others but apparently did not hit any of them. The record shows, also, that defendant was in a rage at the time. By comparison, the record in Valencia contained no evidence whatsoever concerning the defendant's conduct or emotional state immediately prior to driving, but for the bare fact that he had been drinking. Moreover, the record here establishes that defendant was completely coherent and aware of his conduct immediately prior to getting into his car, while the record in 44 Valencia was barren of any evidence concerning the defendant's level of awareness when he began to drive. O:msistent with this defendant's relative coherence, his blood alcohol content ("BAC') was lower than Valencia's BAC, which was nearly three times the legal limit. Even more important than these factual distinctions is the difference in the history and posture of the cases. The trier of fact in Valencia - the trial court - specifically found that the defendant was oblivious to his circumstances, i.e., that he had no mens rea, at the time he drove. Valencia, 58 AD.3d at 881 (Dillon, J., dissenting). Thus, the trial court's finding of fact was inconsistent with its guilty verdict, and this Court affirmed the intermediate appellate court's holding that the verdict could not stand. Similarly, in Feingold, where the defendant attempted to commit suicide by turning on the gas after extinguishing the pilot lights of his stove, thereby causing an explosion that damaged his neighbors' apartments (7 N.Y.3d at 290), the trier of fact - again, the trial court - specifically found that the defendant was not depravedly indifferent, but nonetheless pronounced him guilty of depraved-indifference reckless endangerment (id, at 295). This Court reversed, stating that when a factfinder "pointedly says that defendant was not depravedly indifferent, it is not our place to say that he was." Id. At the same time, however, the Court stated that "defendant might well be said to have acted with the mens rea of depraved indifference had the 45 factfinder simply announced a guilty verdict," and that, had that been the case, "[v]iewing the evidence in the light most favorable to the People, [this Court] could properly have affirmed the conviction, concluding that the factfinder inferred that defendant had the requisite mental state (depraved indifference)." Id. The Court explicitly stated that one who endangered others by turning on gas jets could be deemed guilty of a crime of depraved indifference - but not when the factfinder has specifically found that the defendant was not depravedly indifferent. I d. at 296. Thus, not everyone who turns on the gas jets of his oven and waits for death is depravedly indifferent to the lives of others - but, as this Court stated, such conduct could warrant a finding of that mens rea in some circumstances. Likewise, not everyone who drives on the wrong side of a divided highway is depravedly indifferent, but the facts of a particular case could justify a finding of depraved indifference. 8 Here, the evidence supported the finding that defendant acted with depraved indifference. That the proof was insufficient in Valencia, or Feingold, or any other case, does not compel the same conclusion here, where there was overwhelming evidence that, despite his heavy consumption of alcohoL defendant was aware of his surroundings and his conduct, and simply did not care about the lethal danger that he posed. Accordingly, trial counsel cannot be faulted for choosing not to contest the 8 Thus, the respondent would not "contend that all these wrong-way drivers did so on purpose" (Defendant's Brief at 43 [emphasis in original]. Nor is urging "the State to enhance the safety measures along public highways" (ill, at 42), in order to prevent accidental wrong-way driving, inconsistent with prosecuting those exceptionally rare cases where a death occurs as a result of deliberate wrong-way driving as depraved-indifference murder. 46 legal sufficiency of the depraved-indifference murder charge on the ground that there was insufficient evidence of defendant's mental state. Nor is defendant's claim of ineffective assistance strengthened by People v. Prindle, 16 N.YJd 768 (2011), another case that post-dates defendant's trial and, thus, could not possibly have been cited by counsel in support of a motion to dismiss the murder charge. Distinguishing the case at bar from Prindle, the Appellate Division in McPherson noted that Prindle was attempting to avoid the police, suggesting that he was consumed with the intent to escape, to the exclusion of any other mens rea (A-5). This reading of Prindle is comparable to the finding of the Feingold trial judge, who stated that Feingold "committed an extremely reckless and foolish act not because of his lack of regard for the lives of others but because of his focus upon his troubles and himself." Feingold, 7 N.YJd at 295. But that was not the case with this defendant. Instead, the record here demonstrates convincingly that defendant was aware of and consciously disregarded the threat he posed to others on the parkway. At the very least, a rational jury could have concluded as much. The evidence adduced at trial was clearly sufficient to make defendant's mental state an issue of fact suitable for only the jury to decide. The record shows that the trial court agreed with this assessment of the evidence and almost certainly would have denied a motion to dismiss the murder charge as legally insufficient. The court's findings and comments during defendant's 47 i I sentencing demonstrate that an argument contesting the proof of his mens rea would have had little, if any, potential to persuade. Before imposing sentence, the court reviewed the events of October 19,2007: The evidence clearly establishes that during an argument with his girlfriend, the defendant fired multiple shots in the parking lot with people in the area. He immediately thereafter got into his car and fled the scene at a high rate of speed and within a minute or two, entered the Southern State Parkway going westbound in the eastbound lanes of traffic. During the four or five minutes he was on the parkway, he passed and put in serious danger many members of the traveling public. He had a very high blood alcohol reading and his speed approached 80 miles an hour before he was involved in the fatal collision. (SA-202). The court went on to find, for the purpose of sentencing, that defendant's "state of mind of depravity commenced with the firing of the weapon" (SA-203 [emphasis added]. These statements by the trial court indicate that a challenge to the legal sufficiency of defendant's murder conviction would have been futile because the court correctly assessed the evidence as sufficient to prove the culpable mental state of depraved indifference to human life. 48 Similarly, trial counsel reasonably chose not to raise defendant's argument that his actions created no grave risk of death (Defendant's Brief at 45). Indeed, such an argument would have been preposterous. The trial evidence clearly established that defendant engaged in conduct - speeding the wrong way into oncoming traffic on a major highway for a distance of five miles - that created a grave risk of death to others. It established that defendant, before he killed Leslie Burgess, almost killed several other people, including an off-duty police officer in a car that avoided defendant's by mere inches, and two women and a baby in another car that also narrowly avoided a collision. Defendant argues, nonetheless, that the prosecution failed to prove that he engaged in conduct that created "a grave risk of death to another person" (Penal Law § 125.25[2]. According to defendant, the only conduct that he consciously engaged in was drunk driving, and he cites various statistics showing that drunk driving does not, per se, create a grave risk of death to another person (Defendant's Brief at 46-49). These statistics, and the conclusions defendant draws from them, are irrelevant to the conduct proven at trial. By citing statistics pmportedly showing that a decision to drive drunk does not, on its own, pose a grave risk, defendant is attacking a straw man. The prosecution's theory of proof was not that defendant was a murderer simply because he was drunk when he drove and caused Leslie Burgess's death. The theory advanced was that this 49 defendant, while under the influence of - but conspicuously and demonstrably tolerant of - alcohol, either intentionally drove in the wrong direction on the parkway or became consciously aware that he was going the wrong way and took no action to avert the disaster that followed. The entirety of that conduct- not merely defendant's intoxicated driving- established a "grave risk of death" to others. For the foregoing reasons, counsel's decision not to claim insufficient proof of either the mens rea of depraved indifference or the grave risk of death caused by defendant's actions did not deprive defendant of a fair trial. Nor was defendant deprived of the opportunity for appellate review of any "clear-cut and dispositive" issue. After all, defendant was able to convince only one of the four Appellate Division justices reviewing his case that only one aspect of these claims - regarding his mens rea - had any merit. Under New York law, the failure to preserve a claim for appellate review may rise to the level of a constitutional violation when trial counsel has "a winning argument" that he "could not reasonably have thought ... was not worth raising." Turner, 5 N.Y.3d at 481. On the other hand, "failing to pursue an argument that had little or no chance of success" does not amount to ineffective assistance of counsel. People v. Ennis, 11 N.Y.3d 403, 415 (2008). In between these extremes - the sure winner and the almost certain loser- is the claim of some merit that is, however, "not 50 so compelling that a failure to make it amount[s] to ineffective assistance of counsel." People v. Carter, 7 N.Y.3d 875, 876-77 (2006). Far from being a winning argument that no reasonably competent defense counsel would fail to raise (see Turner, 5 N.YJd at 481 [counsel failed to raise defense of statute of limitations, which was "clear cut and completely dispositive"], defendant's claims of legal insufficiency regarding his mens rea and the supposed lack of a grave risk of death were, in fact, "argument[s] that had little or no chance of success" (Ennis, 11 N.Y.3d at 415). At the very most, these claims fall into the Carter category of somewhat meritorious, but not compelling, arguments that defense counsel was not obligated to raise. Indeed, the respondent is unaware of any case - and defendant cites no case - in which this Court has held that the failure to preserve a legal issue regarding an unsettled or evolving area of law constituted ineffective assistance of counsel. Thus, counsel's decision not to raise the foregoing arguments did not amount to a violation of defendant's constitutional rights. Likewise, trial counsel cannot be faulted for choosing not to preserve defendant's present argument that the second-degree criminal possession of a weapon charge (Penal Law § 265.03[1Jb] should have been dismissed or reduced on the ground of legal insufficiency. At trial, such an argument would have been meritless and virtually certain to fail. Defendant contends that the evidence supporting that count, which required proof of a loaded gun, was legally insufficient because his nine- 51 millimeter semiautomatic pistol was unloaded when the police found it in his car (Defendant's Brief at 72). Defendant does not dispute that the gun was loaded and fired outside the nightclub (id. at 74). He claims, however, that because no eyewitness saw him actually fire it, the evidence that he possessed the gun while it was loaded was legally insufficient (id,). "A verdict is legally sufficient when, viewing the facts in a light most favorable to the People, 'there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt."' Danielson, 9 N.YJd at 349 (quoting People v. Acosta, 80 N.Y.2d 665, 672 [1993]. The elements of the crime of second-degree criminal possession of a weapon are: (1) that defendant had in his possession a loaded firearm; (2) that defendant knowingly possessed the firearm; (3) that the firearm was loaded and operable; and ( 4) that defendant intended to use the firearm unlawfully against another. See Penal Law §§ 265.03(1)(b), 265.15(4); CJI.2d(N.Y.) Penal Law § 265.03(1)(b). When the evidence presented at trial is viewed in the light most favorable to the prosecution, it is clear that a rational jury could have found these elements - including that defendant was in possession of the gun when it was loaded - beyond a reasonable doubt. To prove that the gun was loaded at some time during defendant's possession, the prosecution was not required either to show that the gun was loaded when it was 52 seized by the police or to present a witness who saw defendant actually firing the gun. New York courts have routinely upheld similar weapons convictions without any such proof. In People v. Bailey, 19 ADJd 431 (2d Dept.), for example, the Appellate Division affirmed the second-degree criminal possession of a weapon conviction of a defendant who, in connection with a shooting, was arrested with a firearm containing a single, defective bullet. The defendant was acquitted of the attempted murder and assault charges arising from the shooting. Notwithstanding his acquittal of these charges and the fact that his firearm was, for purposes of the Penal Law, unloaded at the time of his arrest, the coutt held that "a rational jury could have inferred that, at some point before the defendant's apprehension by the police and the concomitant recovery of the weapon, he possessed a firearm loaded with operable ammunition with the intent to use it unlawfully against another." Bailey, 19 AD .3d at 432. Similarly, in People v. Main, 179 AD.2d 953 (3d Dept.), lv. denied, 80 N.Y.2d 834 (1992), no one witnessed the defendant shooting his gun. Indeed, in contrast to the instant case, the gun was never recovered, and hence there was no ballistics analysis linking the defendant to the shots fired. Nevertheless, the Appellate Division affirmed the defendant's conviction of criminal possession of a weapon in the second degree. As in the instant case, the defendant in Main contended "that the circumstantial evidence presented at trial was insufficient to prove his guilt beyond a 53 reasonable doubt." Main, 179 AD.2d at 954. After reviewing evidence that was, in many respects, much weaker than the evidence presented here,9 the court held that "the proof presented established a well-connected chain of facts and circumstances leading reasonably to a conclusion of guilt and excluding to a moral certainty any reasonable hypothesis of innocence." Id. at 955.10 Here, the evidence against defendant was much stronger than that presented in Main, or Bailey, or other similar cases. Delroy McCalla testified at defendant's trial that shots were fired in the parking lot outside of the Island Rock nightclub moments before defendant drove away. Immediately before hearing the shots, McCalla saw defendant leaning over his open car tnmk, from which the police later recovered ammunition and a partially-loaded clip for the nine-millimeter pistol found on the floorboard in front of the front passenger seat. Defendant then went to the front passenger seat of the Lexus and sat down. According to McCalla, defendant was "looking up and down" to his lap while he was sitting there (McCalla: A-270-72). 9 For example, as noted above, no ballistics expert established that the gun which fired the shots belonged to defendant Main. Moreover, in contrast to the case at bar, witnesses who heard the shots could not identify the defendant in Main as the man they saw near the scene after the shots were fired. Main, 179 A.D.2d at 955. 10 See also People v. Cade, 215 A.D.2d 772 (2d Dept. 1995) (affirming conviction of second- degree possession of a weapon where defendant had "constructive possession" of a weapon found in his bedroom notwithstanding others' access to bedroom); People v. Mcinnis, 179 A.D.2d 781 (2d Dept. 1992) (affirming second-degree possession of a weapon where gun used to shoot and kill victim was not recovered); People v. Johnson, 91 A.D.2d 327 (4th Dept. 1983) (affirming second- degree possession of a weapon and murder convictions on basis of circumstantial evidence including the discovery of victim's body and two spent shell casings in defendant's apartment), aff'd, 61 N.Y.2d 932 (1984). 54 Next, while McCalla was in his own car and not watching defendant, McCalla heard shots fired nearby (McCalla: A-276). McCalla's testimony was corroborated by other witnesses who heard shots fired in the vicinity of the nightclub at approximately the same time (DeRisi: A-176- 93; Wheeler: A-211-16). A bouncer from the Island Rock called 911 after hearing the shots, which he perceived to be coming from the parking lot where defendant's car was parked (Wheeler: A-211-16). In response, police soon arrived at the scene. Officer Cassagnol found five nine-millimeter shell casings in the parking lot, which he put in an evidence bag for testing (Cassagnol: A-286-92). Ballistics tests determined that those five shell casings found in the parking lot were fired by the pistol found in defendant's car (Nemeth: A-296-310). Accordingly, a rational jury could have inferred on the basis of, among other things, the match between the pistol found in defendant's car and the shell casings found outside the nightclub, that at some point before the collision on the Southern State Parkway, defendant possessed the pistol loaded with operable ammunition with the intent to use it unlawfully against another. See Penal Law § 265.15(4). Nevertheless, defendant contends that the evidence was consistent with his girlfriend, Gystal Green, "picking up the gun and firing the shots due to her anger at the defendant" (Defendant's Brief at 74). He argues that Green could have "had the weapon in the first place, pulled it out of her own pocketbook or clothing, fired lmtil 55 the magazine was empty, and then threw the unloaded gun onto the passenger seat" (Defendant's Brief at 76). There is no support in the trial record for such an implausible scenario. To the contrary, McCalla testified that he watched Green closely - both before and after the pistol was fired- and never saw her with a gun. "[T]he whole time[,] [McCalla] was looking at Gystal [Green]" (A-270). At one point, McCalla even grabbed Green and "tried to drag her to ... the car'' (A-272). Immediately before the shots were fired, McCalla saw Green "talking with her hands" (A-276). Had Gystal been holding a gun in one of those hands, McCalla surely would have seen it. Moreover, if the gun had been Green's, not defendant's, it is a remarkable coincidence, to say the least, that in his car's trunk defendant kept a partially loaded magazine matching the gun, along with dozens of rounds of matching ammunition. McCalla never mentioned Green putting anything into the trunk, much less onto the passenger seat, of defendant's car. By contrast, McCalla said that he saw defendant getting into the trunk, apparently to retrieve something, and then sitting in the passenger seat. In sum, defendant ignores ample proof in the trial record for the reasonable inference that defendant possessed the pistol when it was loaded. Indeed, by overwhelming evidence, the prosecution demonstrated that at approximately3:15 a.m. on October 19, 2007, several shots were fired by the gun that was found in 56 defendant's car a short time later, along with forty-one rounds of live ammunition. Although no one may have witnessed defendant actually pulling the trigger, there was no one else with a reasonable opportunity to load, fire, or unload the gun. Immediately before the shots were fired, defendant, who was visibly angry, was seen retrieving something from the area of the car where the police later found ammunition - the trunk - and then going to the front passenger area, where the police later found the gun. No one else was seen entering these areas of the car. And there was no evidence that the gun belonged to anyone other than defendant. Thus, defendant's guilt of the gun charge was proven beyond a reasonable doubt. Under these circumstances, counsel's decision not to mount a meritless legal sufficiency challenge was blameless, as was his choice not to waste time and effort on a pointless argument that defendant's mental state was not an issue of fact for the jury to decide. C. DEFENSE CbUNSEL EMPLOYED A V AUD STRATEGY IN QUESTIONING THE IDENTITY OF THE VICTIM. Defendant contends that his trial counsel should not have pursued "a defense strategy based on misidentification of the victim" (Defendant's Brief at 66). It was not a "valid" strategy, defendant argues, because the victim's identity was not an element of the crime of murder (id.). Moreover, the strategy was risky because it reminded the jury of the condition of the victim's corpse. While the associated risks "might have 57 been worth taking in support of a valid trial strategy," they "were not worth taking in support of an argument that, even if successful, would not have negated the elements of the crime" (id, [emphasis in original], defendant contends. Defendant draws an erroneous distinction between "valid" and "invalid" strategies. A trial strategy need not negate an element of a charge against the accused to be "valid." In People v. Baker, 14 N.YJd 266 (2010), for instance, this Court noted that one "legitimate tactical reason" for trial counsel's decision not to demand that two of three homicide counts against the defendant be charged in the alternative could have been counsel's "conclu[sion] that submission of all three homicide counts created an opportunity for jury leniency." Id. at 272-73. Counsel might have reasoned, the Court explained, that "[i]f jurors were split on either of the higher counts [depraved-indifference murder and first-degree manslaughter], ... they would compromise by convicting defendant of the less serious offense [second-degree manslaughter]." Id. at 272. Thus, "there was a benefit in giving the jury the option of considering the less serious homicide offense at the same time it deliberated over the ... [more serious] charges." I d. Like the strategy described in Baker, many other valid tactics and strategies frequently employed by competent criminal defense attorneys do not negate any element of the crimes charged against their clients. Counsel may act to minimize the 58 impact of harmful testimony, for example, or to diminish the possibility that the jury's verdict will be motivated bysympathyforthe victim. In this case, one valid consideration supporting counsel's decision to call the victim's identity into question was that it provided counsel with an opportunity to elicit unfavorable testimony about the victim that could have diminished the probability of a jury verdict motivated by sympathy. The following exchange about the identification of Leslie Burgess's body occurred during the cross-examination of Investigator Bedell: Q: In fact, had you spoken at all to the medical examiner in this case? A: No. Q: Didn't he advise you to get DNA that was on file at Rikers [Omectional Facility]? MS. McCDRMICK: Objection, this is well beyond the scope of direct .... Q: You learned through that investigation . . . that Mr. Burgess had spent time as an inmate at Elmira [Correctional Facility]? MS. McCDRMICK: Objection. Q: Comstock and Rikers, correctional facilities, correct? TI-IE CDURT: Sustained. Q: You weren't asked by the medical examiner to retrieve dental records and DNA that was on file of this individual? 59 MS. McCORMICK: Objection. THE COURT: Were you asked by the medical examiner to do that? THE W'ITNESS: Me personally, no. (Bedell: SA-166-67). Defense counsel was thus able to suggest that the deceased had a substantial criminal record and might not have been the sympathetic victim about whom the jury had previously heard. (})unsel's tactic is commonly used in murder cases, even when no justification defense is asserted. See, e.g., Hedrick v. True, 2004 WL 594989, at 'f21 (W.D. Va. 2004) ("The Supreme C}}urt of Virginia found that trial counsel made a tactical decision that they would not object to this testimony because ... [it] 'opened the door' permitting trial counsel to cross-examine Alexander about the victim's past criminal history."); Lord v. N.Y. Atty; General, 1991 WL 5174, at •f4 (W.D.N.Y. 1991) ("Defense counsel's strategy in eliciting this testimony was to portray [victim] Hook as more a criminal than a victim.") The effectiveness of the tactic is apparent in the number of objections it immediately elicited from the prosecutor in this case. Three times in the brief exchange above, the prosecutor interrupted with objections. The prosecutor's rapid, unequivocal response to counsel's questions was motivated by obvious concern that the testimony defendant sought to elicit was not only 60 objectionable, but also might accomplish exactly what defendant sought, i.e., to tarnish the victim in the jurors' eyes. Another benefit of calling the victim's identity into question was more subtle, but no less significant. It enabled defense counsel to introduce into evidence a matter- of-fact photograph of the victim's corpse.U In so doing, defense counsel succeeded in preventing the jury from imagining - or, at the very least, helped to dispel - even more gruesome mental pictures generated by the testimony heard over the course of the trial. The jury was told repeatedly, by multiple prosecution witnesses, about the condition of the victim's corpse. Witnesses saw "a charred body part with burned flesh" inside the Jeep (Schreiber: SA-14), "charred skin" (Schreiber: SA-15), legs exhibiting "extreme charring, incineration type-wounds" (Goodwin: SA-85), "charred flesh" and "what appeared to be limbs" (Gein: A-330). The bodywas burned so badly that observers could not determine the race, or even the gender, of the victim (Bedell: SA-133). Similarly, the medical examiner described a corpse that was a shrunken version of the living victim, with "thermal bums to ninety percent of the body surface area," many of which "showed charring" (Catanese: SA-90). Finally, the victim's sister 11 This was a single, matter-of-fact photograph of the deceased victim at the crash scene, in which most of the body was not depicted and very few features were discernible- not, as defendant claims, multiple "graphic crime scene photographs" (Defendant's Brief at 66). Moreover, cotmsel did not "deliberately elicit[ ] gruesome testimony about the appearance of the charred corpse" (id). The condition of the deceased had already been established by the prosecution. All that defense counsel did was to establish that the appearance of the corpse made its identification difficult. 61 described her brother's body as "burned beyond recognition," such that she was forced to identify the victim solely by a distinctive wrinkle on his forehead (P. Burgess: SA-97). In light of this vivid, detailed testimony, an actual photograph of the body was probably less ghastly than whatever gruesome pictures the individual jurors were painting in their imaginations. Defense counsel could have reasonably concluded that the photograph inoculated the jury against conjured images that were far more damaging to his client. Moreover, even if this "inoculation" tactic did not work, the photograph at issue could not have caused any significant prejudice to defendant under the circumstances, for it merely portrayed what the jurors had already heard multiple times. Thus, there is no basis to conclude that counsel's tactical decision to challenge the prosecution's evidence on the identification of the victim rendered defendant's trial unfair. A third benefit of counsel's tactic was 1ts potential to embarrass the prosecution. There was much to be gained and little to be lost in attempting to persuade jurors that the prosecution could not prove a very basic fact - the identity of the victim - in its case, regardless of whether that fact was an essential element of the crime charged or not. Although defendant is correct in his observation that the identity of the victim is not an element of the crime of second-degree murder (see People v. Applegate, 176 A.D.2d 888, 889 [2d Dept. 1991], that does not mean that 62 the jury in this case would have overlooked a failure to prove that the victim was, in fact, the person named in the indictment. As a strategic matter, defense counsel could have reasonably concluded that the failure to prove such a basic fact might undermine the jury's confidence in the strength of other, more essential proof offered by the prosecution. Finally, defense counsel's argument had the potential to sow confusion in the minds of the jurors. Under the circumstances, an attempt to confuse the jury was a legitimate tactical decision. See Alston v. Phillips, 703 F. Supp. 2d 150, 182-83 (E.D.N.Y. 2010). Counsel could have decided on this approach after reviewing, or discussing with the coutt and the prosecutor, the model charge for depraved- indifference murder in New York's Giminal Jury Instructions. See q1.2d(N.Y.) Penal Law § 125.25(2). According to the qi, the jury should have been charged that the elements of the murder count were as follows: 1. that on or about October 19, 2007, in the county of Nassau, the defendant, Franklin McPherson, caused the death of Leslie Burgess; 2. that the defendant did so by recklessly engaging in conduct which created a grave risk of death to Leslie Burgess; and 3. that the defendant engaged in such conduct under circumstances evincing a depraved indifference to human life. 63 Id. Anticipating that the court's charge would resemble the foregoing, defense cmmsel could have concluded that he could shake the jury's confidence in elements 1 and 2 by emphasizing the difficulty inherent in identifying a corpse in the condition of the victim's. Indeed, it would have been reasonable for counsel to suppose that jurors might have some concerns about the reliability of the prosecution's proof that defendant "caused the death of Leslie Burgess." Id. \Xib.ile the victim's identity is not an element of the crime of murder, the above model charge is worded in such a way that the jury conceivably could have reasoned that the victim's identity must be proven. I-Iad the actual jury charge more closely resembled the qi, defense counsel might have won an acquittal for his client on the top charge simply by confusing the jury with his constant emphasis on the difficulty of identifying Leslie Burgess. For all the reasons described above, counsel's decision to contest the identity of the victim was reasonable, and "valid," under the circumstances. As in many other cases where counsel's effectiveness is at issue, there may be additional considerations, not apparent in the trial record, that supported counsel's strategy here. For this reason, "[i]neffective assistance of counsel can usually be determined only after an evidentiary exploration under a CP.L. § 440.10 motion and it is the rare occasion when such a claim can be resolved on direct appeal." People v. Welch, 108 AD.2d 1020, 1021 (3d Dept. 1985); see also People v. Brown, 45 N.Y.2d 852, 853-54 (1978) ("[I]n the typical case it would be better, and in some cases essential, that an appellate 64 attack on the effectiveness of counsel be bottomed on an evidentiary exploration by collateral or postconviction proceeding brought under CP.L. § 440.10."). That is especially true in cases where "defendant's ineffective assistance claim rests primarily on matters of trial strategy." People v. Lemma, 273 AD.2d 180, 180 (1st Dept. 2000). Such cases "require a C.P.L. § 440.10 motion so that the record could be expanded with respect to the reasons for trial counsel's strategic choices." Id. at 180-81; see also People v. Gilbert, 295 AD.2d 275, 276 (1st Dept. 2002) ("[D]efendant's ineffective assistance claim should have been raised via a CP.L. § 440.10 motion so that the record could be expanded to permit trial counsel to explain his trial tactics."). Similarly, the United States Court of Appeals for the Second Grcuit has insisted on such "record-expansion" for virtually all ineffective assistance claims: "We believe that a district court facing the question of constitutional ineffectiveness of counsel should, except in highly unusual circumstances, offer the assertedly ineffective attorney an opportunity to be heard and to present evidence, in the form of live testimony, affidavits, or briefs." Sparman v. Edwards, 154 FJd 51,52 (2d Gr. 1998). By contrast, this defendant has raised his ineffective assistance claim on direct appeal, without any prior, record-enhancing postconviction motion and, thus, without the benefit of any recorded explanation from trial counsel regarding his strategic choices. Under such circumstances, very little confidence can be placed in defendant's assertion that this is a case where counsel's effectiveness can be accurately judged 65 solely on the basis of the trial record (Defendant's Brief at 65). In any event, the trial record, even as it now stands, without any supplementary information from defense counsel about his strategic choices, reveals that calling the victim's identity into question held out the reasonable possibility of planting at least one seed of doubt in the mind of at least one juror, under circumstances where nearly every other approach was clearly futile in view of the overwhelming nature of the evidence of defendant's guilt. Counsel's strategy offered much to be gained and little to be lost. D. CbUNSEL'S ALLEGED SHORTffiMINGS MusT BE CbNSIDERED IN THE CbN1EXT OF THE ENTIRE T'RrAL, DURING WHICH, THE REmRD DEMONSTRATES, DEFENDANT RECEIVED MEANINGFUL REPRESENTATION. In reviewing defendant's claims of ineffective assistance of counsel, the Court must consider counsel's alleged shortcomings in the context of the "complete representation at the trial level." People v. Flores, 84 N.Y.2d 184, 188 (1994). I-Iere, the trial record shows that defendant enjoyed the able representation of a skilled advocate. For instance, m his openmg statement and summation, counsel argued persuasively to jurors that defendant was too drunk to be depraved (A-18-20, 587-97). Through his cross-examinations, counsel was successful also in obtaining favorable testimony from prosecution witnesses, including Dr. dosson, a forensic toxicologist, 66 who told jurors that an intoxicated driver might not realize that he was driving the wrong way (dosson: A-165-67). In addition, counsel succeeded in evoking testimony establishing that prosecution witnesses could not agree on the number of shots they had heard (DeRisi: A-193-98; Wheeler: A-224-27) - testimony that now features prominently in defendant's brief (at 74). Through cross-examination, counsel established also that defendant's hands and clothes could have been, but were not, tested for powder residue to establish that he fired the gun found in his car (Nemeth: A-310-13). In a similar vein, defense counsel elicited an admission from Investigator Kim Auguste that she could not say whether the gun found in defendant's car had been fired or not (Auguste: A-125-28). Moreover, counsel attacked the credibility of a key prosecution witness, Ricardo Bruno, by showing, among other things, that Bruno had been convicted of a crime and served time in jail (Bruno: A-439-51). Finally, as discussed above, it was during the cross-examination of a prosecution witness that defense counsel succeeded in portraying the deceased as a less than entirely sympathetic victim. Perhaps even more impressive than counsel's performance during the trial was his success in convincing the sentencing court not to impose consecutive sentences on his client. Were it not for defense counsel's diligent and persuasive efforts in that direction, defendant now might be ineligible for release for an additional fifteen years. 67 In sum, the totality of the circumstances demonstrates that defense counsel furnished meaningful representation, and defendant has failed to satisfy his high burden of establishing the absence of strategic or other legitimate explanations for counsel's alleged shortcomings. Defendant's judgment of conviction was most assuredly not the result of counsel's alleged errors, but of the overwhelming proof of his guilt. 68 PoiNT Two JETTISONING THE COURT'S RULE OF PRESERVATION IN FAVOR OF A FEDERAL MODEL IN ORDER TO REVIEW DEFENDANT'S LEGAL INSUFFICIENCY QAIMS, WHIG-I ARE MERITLESS IN ANY EVENT, WOULD VIOLATE THE STATE CONSTITUTION AND DIMINISH THE TRUTH-SEEKING FUNCTION OF THE STATE'S CRIMINAL COURTS (ANSWERING DEFENDANT's BRIEF, PoiNT III). Defendant aclmowledges that the legal insufficiency claims discussed in Point One, supra, were not preserved for appellate review (Defendant's Brief at 67). l-Ie concedes that the cnurt's decision in People v. Gray, 86 N.Y.2d 10 (1995), poses a bar to review (Defendant's Brief at 67). Defendant asks the cnurt, nevertheless, to review those claims. He proposes that the cnurt should overrule Gray and adopt the federal standard of appellate preservation, as set forth in United States v. Gjurashaj, 706 F.2d 395 (2d Or. 1983), in place of the Gray standard. According to Gjurashaj, when a defendant moves, pursuant to Rule 29 of the Federal Rules of Giminal Procedure, for a judgment of acquittal due to legally insufficient evidence, the motion may be "without specificity as to the grounds." Gjurashaj, 706 F.2d at 399. The defendant is not required to identify the elements that allegedly were not proven. Under this standard, defendant argues, his legal insufficiency claims were properly preserved for the cnurt' s review. The cnurt would be unwise to jettison its own rule of appellate preservation solely in order to reach the merits of defendant's claims. In fact, to do so would be not only unwise but also unconstitutional. The Court's rule of appellate preservation 69 is rooted in "the State O:mstitution's general limitation of the jurisdiction of the Court of Appeals to questions of law." People v. Hawkins, 11 N.YJd 484,491 (2008) (citing N.Y. Const. art. VI, § 3). The CP.L. "provides that a question of law arises in a criminal proceeding when 'a protest thereto was registered, by the party claiming error, at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same."' Hawkins, 11 N.YJd at 491 (quoting CP.L. § 470.05[2]. Because a trial court cannot effectively correct an error of which it has not been notified, this Court has held, repeatedly, that a claim of legal insufficiency is not preserved for appellate review unless raised in a motion for a trial order of dismissal that is "specifically directed" at the alleged insufficiency. Gray, 86 N.Y.2d at 19. By contrast, "general motions simply do not create questions of law for this Court's review." Hawkins, 11 N.YJd at 492. Accordingly, neither Rule 29 nor Gjurashaj and the other federal cases cited by defendant matter to the question now before this Court, i.e., whether defendant's claims are outside the scope of the Court's review. Of course, the answer to this question is that the unpreserved claims are not reviewable. In fact, the Court is generally powerless under the State Constitution to review the kind of nonspecific (and therefore nonlegal) motions permitted in federal courts pursuant to these authorities. The difference between the state and federal standards of appellate preservation is not accidental; it is a result of the divergent histories of two very 70 different court systems. Federal appellate courts operate lU1der an entirely different set of jurisdictional limitations. Also, intermediate appellate courts in the federal system do not enjoy the Appellate Division's broad interest-of-justice jurisdiction, which permits review even when a claim was not properly preserved. At a debate by the State Legislature on the merits of amending the New York Constitution to expand the Court's powers of review, Gjurashaj, et al., might be instructive. See generally Skelos v. Paterson, 13 N.Y.3d 141, 164 (2009) (mentioning Legislature's powerto "pass[ ] amendments to the New York Constitution that [a ]re ultimately adopted by vote of the People"). In the present forum, however, they are irrelevant. Moreover, even if the Court were empowered on its own to effectuate such an expansion of its jurisdiction, there are compelling practical reasons not to do so. In his brief, defendant correctly notes that "the purpose of preservation is to alert a court to an error at a time when it can be corrected" (Defendant's Brief at 69). l-Ie is incorrect, however, in asserting that legal insufficiency is "not an 'error' that can be corrected by the trial court" (id.). To the contrary, this Court has held that the trial court has the discretion, lU1der certain circumstances, to allow the People to re-open their case to prove a missing element brought to the court's attention by the defendant's motion for a trial order of dismissal. See People v. Whipple, 97 N.Y.2d 1 (2001); see also People v. Maloy, 36 A.D.3d 1017 (3d Dept. 2007); People v. Hollis, 255 A.D.2d 615 (3d Dept. 1998). Thus, the Gray rule that motions to dismiss on legal insufficiency 71 grounds must be specifically directed to the alleged weakness in the evidence "advanc[es] both the truth-seeking purpose of the trial and the goal of swift and final determination of guilt or nonguilt of a defendant." Hawkins, 11 N.Y.3d at 492. Without the Gray rule, trial counsel would have significantly less incentive to offer specific reasons in support of motions to dismiss. Consequently, it is not unreasonable to suppose that without the rule the defense bar and prosecutors alike could soon be afflicted by a creeping intellectual lazilless, resulting in a steadily increasing number of legally insufficient convictions across the State. Often, trial courts would fail to dispose of these convictions and the task would fall instead on the State's appellate courts, which can scarcely afford the burden of a greater caseload. Defendant has not demonstrated that his case warrants such a radical change to the Court's jurisprudence or the exposure of the State's trial and appellate courts to the risks described above. Furthermore, even if there were a need for such a change, and the Court were willing and able to adopt the federal model of preservation in order to review defendant's claims of legal insufficiency, this legal innovation would not benefit defendant. For the reasons described in detail under Point One, B., supra, the evidence supporting defendant's convictions was more than legally sufficient. The jury heard testimony about defendant's coherence and awareness of his surroundings as he left the Island Rock nightclub; it heard also of his rage and the shots he fired immediately before driving away from the nightclub and onto the 72 parkway, going in the wrong direction. Jurors were told of the many "Wrong Way" signs and other visual warnings that defendant passed during his five-mile drive against traffic on the parkway. They were told of the blasting air-hom that a truck driver sounded in an attempt to stop defendant. Jurors learned of the experiences of several terrified motorists whose headlights shone directly into defendant's field of vision - even if it had been limited to "tunnel" vision - until each of them swerved out of his way, narrowly avoiding a deadly collision. Finally, the jury heard about defendant's failure to brake or otherwise attempt to avoid his deadly collision with Leslie Burgess's vehicle. In its totality, this was powerful circumstantial evidence from which a rational jury could have inferred that defendant consciously acted with "utter disregard for the value of human life." Feingold, 7 N.Y.3d at 296. Certainly, the prosecution presented enough evidence at trial for the jury to find that defendant acted with depraved indifference to human life. Likewise, ample evidence supporting the gun charge was presented to the jury. It heard testimony from multiple witnesses about gun shots that were fired in the parking lot outside of the Island Rock nightclub moments before defendant drove away. Immediately before the shots were fired, a witness saw defendant leaning over his open car trunk, from which the police later recovered ammunition and a partially- loaded clip for the nine-millimeter pistol found on the floorboard in front of the front passenger seat. After going into his trunk, defendant sat down in that front passenger 73 seat and acted like he was tinkering with something on his lap. Next, defendant stood up and walked away from the car. A moment later, the shots were fired. The jurors heard also of the five shell casings that were found by the police in the parking lot. Ballistics tests determined that the shell casings were fired by the pistol found in defendant's car. Accordingly, a rational jury could have inferred on the basis of, among other things, the match between the pistol found in his car and the shell casings found outside the nightclub, that at some point before the collision on the Southern State Parkway, defendant possessed the pistol loaded with operable ammumtJ.on. Thus, even if defendant's claims had been properly preserved for appellate review and, as such, could be considered by the Court, the trial record demonstrates that the evidence supporting defendant's convictions of depraved-indifference murder and second-degree criminal possession of a weapon was legally sufficient. Defendant has failed to offer any legitimate reason to disturb the Appellate Division's order affirming his judgment of conviction. The order should be affirmed. 74 CoNCLUSION 'THE APPELLATE DIVISION'S ORDER AFFIRMING DEFENDANT'S JUDGMENT OF CoNVICTION SHOULD BE AFFIRMED. Dated: Mineola, New York January24, 2013 Tammy J. Smiley Jason R. Richards Assistant District Attorneys Of Counsel 75 Respectfully submitted, Kathleen M. Rice District Attorney, Nassau County Attorney for Respondent 262 Old Country Road Mineola, New York 11501 (516) 571-3800 ffiURT OF APPEALS STATE OF NEW YORK -------------------------------------------------------------------]{ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- FRANKUN MCPHERSON, Defendant-Appellant. -------------------------------------------------------------------]{ CERTIFICATE OF ffiMPLIANCE WITH RULE 500.12(h) Respondent has submitted a CD-ROM containing a PDF copy of the brief and supplementary appendix. The PDF of the brief and supplementary appendix are identical to the Respondent's original brief and Respondent's original supplementary appendix filed with the Court. The only difference is that the PDF brief and PDF supplementary appendix do not contain original signatures. Dated: Mineola, New York January24, 2013 By: Kathleen M. Rice District Attorney, Nassau County Attorney for Respondent 262 Old Country Road Mineola, New York 11501 (516 571-3800 ~