—[*1] Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), for appellant.

Mark J. Gaylord, Schenectady, for respondent.

Kavanagh, J. Appeal from an order of the Supreme Court (R. Sise, J.), entered September 10, 2010 in Schenectady County, which, among other things, partially granted defendant's motion pursuant to CPL 330.30 to set aside the verdict convicting him of the crimes of assault in the first degree and reckless endangerment in the first degree, without a hearing.

Defendant had a physical altercation with his 12-year-old son and, because the boy was seriously injured, defendant was subsequently charged by indictment with assault in the first degree, assault in the second degree, reckless endangerment in the first degree and endangering the welfare of a child. After a jury trial, Supreme Court dismissed the charge of assault in the second degree and, while the jury convicted defendant of endangering the welfare of a child, it was unable to arrive at a verdict as to the remaining charges. A second trial was conducted and the jury found defendant guilty of assault in the first degree and reckless endangerment in the first degree. Defendant moved to set aside this verdict on the ground that the evidence submitted at trial was legally insufficient to establish that, during the altercation, he acted with depraved indifference to human life (see CPL 330.30 [1]).^[FN*] Supreme Court agreed and modified the [*2]verdict, setting aside the convictions rendered by the jury and, in their stead, entered convictions finding defendant guilty of assault in the third degree and reckless endangerment in the second degree. The People now appeal.

Two issues have been raised on this appeal. First, the People claim that Supreme Court employed the wrong standard when it reviewed the evidence submitted at trial and decided to modify this verdict. The People argue that the court based its decision to modify this verdict not on a finding that the evidence was legally insufficient, but because, in its opinion, the verdict was not supported by the weight of the credible evidence introduced at trial. The People also contend that the evidence at trial was legally sufficient to support the jury's conclusion that defendant acted with depraved indifference to human life during this altercation with his son, and the jury's verdict as originally rendered should be reinstated.

A defendant, before being sentenced, may move to set aside or modify a guilty verdict on "[a]ny ground appearing in the record which, if raised upon an appeal from a prospective judgment of conviction, would require a reversal or modification of the judgment as a matter of law by an appellate court" (CPL 330.30 [1]; see People v Sudler, 75 AD3d 901, 904 [2010], lv denied 15 NY3d 956 [2010]). Here, defendant's motion called for Supreme Court to set aside the verdict because the evidence submitted at trial was, as a matter of law, legally insufficient to support the charges for which he stands convicted (see CPL 330.30 [1]; see e.g. People v Danielson, 9 NY3d 342, 348 [2007]; People v Parker, 84 AD3d 1508, 1510 [2011]; People v Bridges, 16 AD3d 911, 912 [2005], lv denied 4 NY3d 884 [2005]). In deciding such a motion, the court must view the evidence presented at trial in a light most favorable to the People and then determine if that evidence is legally sufficient to support each element of the crimes for which the jury returned a guilty verdict (see People v Parker, 84 AD3d at 1510; compare People v Garcia, 272 AD2d 189, 189-190 [2000], lv denied 95 NY2d 889 [2000]). The People claim that when Supreme Court decided this motion, it only paid lip service to that standard, and modified the verdict because, in its opinion, the verdict was not supported by the weight of the credible evidence. It also argues that the court, in its decision, passed on the credibility of witnesses who testified at trial—in particular, defendant's children who witnessed the attack—and made its own assessment of their credibility.

We disagree. In its decision, Supreme Court focused on testimony given at trial by defendant's children and relied on their accounts of what transpired at the time of the altercation between defendant and his son. Specifically, the court found that it was significant in terms of depraved indifference that the children, in describing the encounter, all recalled "that as soon as [defendant] realized [the victim] had lost consciousness, he picked him up, put him in his lap, and tried to wake him up." In our view, that conclusion represented an accurate summary of the testimony given by the children at trial, and did not, as claimed by the People, constitute an independent assessment by the court of their credibility. Also, the court, in deciding the motion, gave the People the benefit of every favorable inference that could, and should, be drawn from the evidence introduced at trial, and only then did it conclude that the verdict was not supported by legally sufficient evidence (see People v Danielson, 9 NY3d at 349).

Further, we find that the evidence introduced at trial was legally insufficient to support a finding that defendant acted with depraved indifference during the altercation with his son, and [*3]Supreme Court's decision granting defendant's motion to modify the verdict should be affirmed. " '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' " (People v Brown, 17 NY3d 863, 865 [2011], quoting People v Danielson, 9 NY3d at 349). Both charges—assault in the first degree and reckless endangerment in the first degree—require that it be proven that defendant, "[u]nder circumstances evincing a depraved indifference to human life, . . . recklessly engage[d] in conduct which create[d] a grave risk of death to [his son]" (Penal Law § 120.10 [3]; § 120.25; see People v Lewie, 17 NY3d 348, 358 [2011]; People v Battles, 16 NY3d 54, 58 [2010], cert denied 565 US —, 132 S Ct 123 [2011]; People v Valencia, 14 NY3d 927, 928 [2010]). Depraved indifference is defined as a state of mind in which defendant, by his actions, demonstrates " 'an utter disregard for the value of human life—a willingness to act not because one intends harm, but because one simply doesn't care whether grievous harm results or not' " (People v Feingold, 7 NY3d 288, 296 [2006], quoting People v Suarez, 6 NY3d 202, 214 [2005]). It embodies conduct "so wanton, so deficient in a moral sense of concern, so devoid of regard of the life or lives of others, and so blameworthy as to warrant the same criminal liability as that which the law imposes upon a person who" intends the particular result (People v Suarez, 6 NY3d at 211 [internal quotation marks and citations omitted]; see People v Prindle, 16 NY3d 768, 770 [2011]; People v Taylor, 15 NY3d 518, 523 [2010]; People v Feingold, 7 NY3d at 301 [Kaye, Ch. J., dissenting]; People v McLain, 80 AD3d 992, 997 [2011], lv denied 16 NY3d 897 [2011]).

Initially, we note that one-on-one altercations rarely will support a finding of depraved indifference (see People v Taylor, 15 NY3d at 522), and it is "even rarer when the other person is one's own child" (People v Lewie, 17 NY3d at 359). Here, the evidence at trial established that defendant, a devout Muslim, was at home with his children when he had a verbal altercation with his 12-year-old son that resulted in him shoving the boy and, in his own words, "popping" the child. Both individuals briefly left the room, but returned shortly thereafter as the family gathered for evening prayers. At that time, the son voiced objections to the family lifestyle and announced that he wanted to smoke and drink like his friends and join a youth gang. Defendant erupted, "snatched" the boy and threw him to the ground. The other children present testified to seeing defendant grab the boy near the neck, throw him to the ground and then, during a brief altercation, strike his head against the carpeted floor as many as five times. One child recalled hearing the boy plead with defendant to stop, and all the children testified that defendant, once he realized his son was unconscious, attempted to revive him and provide first aid. One child, who was eight years old at the time of the incident, testified that defendant at first left the room while the boy lay on the floor, but recalled that he returned as soon as he realized the boy was unconscious and immediately told the children to call 911.

There is no doubt that the injuries sustained by defendant's son in this altercation were serious and life-threatening. However, in our view, defendant's conduct did not rise to the level of " 'wanton cruelty, brutality or callousness directed against a particularly vulnerable victim, combined with utter indifference to the life or safety of the helpless target' " (People v McLain, 80 AD3d 992, 997 [2011], lv denied 16 NY3d 897 [2011], quoting People v Suarez, 6 NY3d 202, 213 [2005]). While defendant's conduct in slamming his son's head onto the carpeted floor as many as five times in rapid succession was deplorable, we agree with Supreme Court's conclusion that his behavior did not constitute the type of prolonged torturous conduct necessary to support a finding of depraved indifference. Accordingly, Supreme Court's order modifying the verdict should in all respects be affirmed. [*4]

Mercure, A.P.J., Lahtinen, Spain and Malone Jr., JJ., concur. Ordered that the order is affirmed. [Prior Case History: 30 Misc 3d 210.]