¶1dissents in a memorandum as follows: I respectfully dissent as I believe the conviction for depraved indifference murder is not supported by legally sufficient evidence.
¶2In People v Suarez (6 NY3d 202 [2005]) the Court of Appeals made clear that when only one person is endangered by the defendant’s conduct, a conviction for depraved indifference murder is authorized in only two categories of cases, both of which “reflect wanton cruelty, brutality or callousness directed against a particularly vulnerable victim, combined with utter indifference to the life or safety of the helpless target of the perpetrator’s inexcusable acts” (id. at 213). First, “when the defendant intends neither to seriously injure, nor to kill, but nevertheless abandons a helpless and vulnerable victim in circumstances where the victim is highly likely to die, the defendant’s utter callousness to the victim’s mortal plight—arising from a situation created by the defendant—properly establishes depraved indifference murder” (id. at 212). Second, “the crime is . . . established when a defendant—acting with a conscious objective not to kill but to harm—engages in torture or a brutal, prolonged and ultimately fatal course of conduct against a particularly vulnerable victim” (id.).
¶3At the close of the People’s case, defendant moved to dismiss the charge of depraved indifference murder on the ground that it was not supported by legally sufficient evidence. Although defendant’s argument was multifaceted, he relied in particular on People v Suarez and argued that the evidence established “a time period that has a minimum of five and a half hours, and a maximum of 13 and a half hours, clearly an isolated attack, as opposed to a course of conduct engaged in which would be considered to have been torturous, where the conscious objective would have been ... to torture, to brutalize, to prolong and ultimately fatally bring to the end another person’s life.” In my view, a fair reading of this argument is that defendant objected that as a matter of law the evidence did not establish depraved indifference murder under the second of the two categories recognized in Suarez.
¶4On this appeal, particularly at pages 17 to 18 of his brief, defendant asserts precisely this claim. Although he also advances other arguments that appear not to be preserved for review, his claim that the evidence did not establish depraved indifference *610murder under the second category recognized in Suarezis preserved for our review. The People do not and could not contend that defendant engaged in “torture,” and thus the conviction can be sustained only if the evidence is legally sufficient to establish that defendant engaged in a “brutal, prolonged . . . course of conduct against a particularly vulnerable victim.” Regardless of whether the victim died as a result of being smothered by defendant (through compression of the neck or chest) or as a result of defendant tying the plastic bag around her neck, the evidence did not establish the kind of “brutal” and “prolonged” course of conduct that, when a single person is endangered by the defendant’s conduct, is necessary under the second category recognized in Suarez. To hold otherwise would be inconsistent with the pronouncement in Suarezthat “[a] defendant may be convicted of depraved indifference murder when but a single person is endangered in only a few rare circumstances” (6 NY3d at 212).
¶5The majority understands defendant’s motion for a trial order of dismissal to have been “confined to calling into question the time frame with respect to the conduct constituting depraved indifference murder.” Particularly given defense counsel’s repeated reliance on People v Suarez and that Suarezsets forth so unequivocally the required proof in each of the two categories of cases, I submit that the majority reads counsel’s argument too narrowly. The most that fairly can be said is that counsel stressed the “time frame” at various points. But counsel also repeatedly argued that the evidence had established only an “isolated attack” and, as quoted above, contrasted such an attack “to a course of conduct engaged in which would be considered to have been torturous, where the conscious objective would have been ... to torture, to brutalize, to prolong and ultimately fatally bring to the end another person’s life.” Moreover, at the end of his argument, counsel argued as follows: “But the bottom line, Judge, is that the nature of what the Court of Appeals has focused on in depraved indifference . . . make[s] it pretty clear that this type of charge is one that has a greater applicability in the types of cases that Suarezaddresses as opposed to the type of case this is” (emphasis added).
¶6In opposing the motion, moreover, the prosecutor made clear that he understood counsel’s argument to be a broader one that called into question the sufficiency of the proof in light of the requirements of the two categories of cases identified in Suarez, not merely the “time frame” of defendant’s conduct. Indeed, the prosecutor began his argument in opposition as follows: “I agree that one of the standards is whether the particular victim *611is particularly vulnerable, and in this case it’s clear she was. And in this particular case, you can point to a period of prolonged suffering the victim would have gone through.” Thus, the prosecutor understood defendant to be challenging the sufficiency of the proof on the issues of whether the victim was “particularly vulnerable,” whether the defendant had engaged in a “prolonged” course of conduct and whether that conduct caused “suffering” (i.e., whether it was “brutal”). And the court then denied the motion “for the reasons argued persuasively by the prosecutor.” Because the court thus ruled on each of these three issues, defendant has preserved each of them for review (People v Feingold, 7 NY3d 288, 290 [2006] [although the People contended that defendant’s challenge to the sufficiency of the evidence convicting him of depraved indifference reckless endangerment murder was “unpreserved because he did not plainly present it to the trial court,” the challenge was preserved because the trial judge “specifically confronted and resolved th(e) issue”]).
¶7Even under the majority’s narrow view of defendant’s motion to dismiss, the claim that the evidence was legally insufficient to establish a “prolonged” course of conduct is preserved for review. The victim may have been in defendant’s apartment for a “prolonged” period. But the question is whether the conduct of defendant that caused her death, even assuming it was “brutal” within the meaning of the term as set forth in Suarezand the cases cited in Suarez, was committed over a “prolonged” period of time. The fatal acts could have been committed over a period of mere minutes, and in my view no reasonable juror could conclude from the evidence that those acts had been committed over a “prolonged” period.
¶8As I would hold that the evidence was legally insufficient to establish that the fatal acts were committed either in a “brutal” fashion or over a “prolonged” period, I need not consider whether it was legally sufficient to establish that the victim was “particularly vulnerable.” I note, however, that the People’s position that the victim was “particularly vulnerable” depends on the sufficiency of the proof that the victim was alive but unconscious, and that defendant knew it, when he tied the plastic bag around her neck. The majority does not explain how the People proved beyond a reasonable doubt that she was alive or unconscious at that point, or that defendant knew she was alive.
¶9Accordingly, I would reverse the conviction for depraved indifference murder, dismiss the first count of the indictment charging that crime and remand for a new trial on the second count of the indictment charging manslaughter in the first degree (see Matter of Suarez v Byrne, 10 NY3d 523 [2008]).