PEOPLE v. ARCE

Defendant's guilt of second-degree murder under a theory of depraved indifference (Penal Law § 125.25) was amply supported by the evidence, notwithstanding that the evidence would have also supported a finding of intentional murder (People v. Cole, 233 A.D.2d 247, lv denied 89 N.Y.2d 984).

Defendant was not entitled to be present at a hearing conducted in the course of his cross-examination to determine the purely legal question of whether he had opened the door to the admission of evidence previously precluded at a Sandoval hearing to which he was a party ( People v. Dickerson, 87 N.Y.2d 914; People v Rodriguez, 85 N.Y.2d 586, 590-591). The court correctly determined that defendant had opened the door to this previously precluded evidence.

We perceive no abuse of sentencing discretion.

Concur — Milonas, J.P., Nardelli, Rubin, Mazzarelli and Andrias, JJ.