Decision Day: September 2005 Term

The Fourth Department handed down its decisions for the September, 2005 term this past Friday. I was out of town, and hence a couple of days late in posting. Not a great term for criminal decisions, with only one real reversal of any substance--People v Lawhorn (decision available here), where the Fourth Department reversed defendant's depraved indifference murder conviction. Following the recent Court of Appeals decisions in People v Gonzalez (1 NY3d 464 [decision available here]) and People v Payne (3 NY3d 266 [decision available here]), the Court in Lawhorn held that, where defendant had stabbed the victim once in the chest, the "case falls within the 'overwhelming majority' of cases in which depraved indifference murder should not have been charged. 'Absent the type of circumstances in, for example, Sanchez (where others were endangered), a one-on-one shooting or knifing (or similar killing) can almost never qualify as depraved indifference murder.'" (Lawhorn, 2005 WL 2403844, 2005 NY Slip Op 07058 [citations omitted].) The Lawhorn case continues the process of clarifying the border between "depraved indifference" and "intentional" murder, and is important because the facts did not involve gratuitous overkill from which an intent to kill is obvious. (See e.g. Gonzalez, 1 NY3d at 465 (standing over prone victim and firing 8 shots into head and back); Payne, 3 NY3d at 269 [shotgun blast at point-blank range to chest].) A useful decision to have at the ready if arguing the legal insufficiency of a depraved indifference murder conviction involving less spectacular overkills than the facts of Gonzalez and Payne.

Of course, it helps if trial counsel makes a detailed trial order of dismissal and renews it at the end of the defense case. The Fourth Department gives no quarter on this preservation requirement, and three decisions from this term found legal sufficiency issues unpreserved based on defense counsel's failure to renew the motion at the close of all evidence. (See People v Diefenbacher, 2005 WL 2403850, 2005 NY Slip Op 07061 [decision available here]; People v Carter, 2005 WL 2403855, 2005 NY Slip Op 07063 [decision available here]; People v Cox, 2005 WL 2404430, 2005 NY Slip Op 07141 [decision available here].)

I'll post on the other interesting decisions from the September term over the next few days.