People v. Dac

—Judgment, Supreme Court, New York County (Michael Corriero, J.), rendered December 18, 1991, convicting defendant, after a jury trial, of assault in the first degree, and sentencing her to a term of IV2 to 4 Vi years, unanimously affirmed. Viewing the evidence in the light most favorable to the People and giving them the benefit of every reasonable inference, the People’s evidence clearly established defendant’s guilt beyond a reasonable doubt (People v Contes, 60 NY2d 620, 621). Defendant’s conduct in savagely beating, kicking and punching the victim, placing a plastic bag over her head, threatening her with a knife, agreeing to "finish her off”, and then throwing her from a window 13 to 14 feet onto an enclosed concrete courtyard littered with metal debris and a jagged tree trunk clearly created a very substantial risk of death and evinced a depraved indifference to human life. Defendant’s claim with respect to the court’s instruction on depraved indifference has not been preserved as a matter of law (CPL 470.05 [2]) and we declined to reach it in the interest [192] of justice. Were we to reach it, we would find that the instruction was proper (see, People v Thomas, 178 AD2d 363, 364). Concur — Rosenberger, J. P., Ellerin, Ross, Nardelli and Williams, JJ.