The People of the State of New York, Respondent, v. Timothy Johnson, Appellant

The People of the State of New York, Respondent, v Timothy Johnson, Appellant. [673 NYS2d 962] [MAJORITY] —Judgment unanimously affirmed. Memorandum: Defendant’s conviction of murder in the second degree (Penal Law § 125.25 [2] [depraved indifference murder]) is supported by legally sufficient evidence and is not against the weight of the evidence (see, People v Bleakley, 69 NY2d 490, 495). Contrary to defendant’s contention, County Court properly instructed the jury that defendant could not be convicted of depraved indifference murder without proof beyond a reasonable doubt that defendant acted with the mental culpability required for the commission of that crime (see, Penal Law § 20.00). The court did not abuse its discretion in admitting into evidence an audiotape of a conversation between defendant and another witness upon determining that the audiotape was sufficiently audible (see, People v Ryan, 121 AD2d 34, 64-65, cert denied 481 US 1059, vacated on other grounds 134 AD2d 300). Finally, defendant’s sentence is neither unduly harsh nor severe. (Appeal from Judgment of Monroe County Court, Egan, J. — Murder, 2nd Degree.) Present — Pine, J. P., Hayes, Wisner, Balio and Fallon, JJ.