People v Packer, 2006 NY Slip Op 05449 [available here]
Continuing on our "depraved indifference" theme, the Fourth Department reversed a defendant's depraved indifference murder conviction where the evidence established only that the defendant shot his victim once in the chest. The facts, as set forth in the Fourth Department's decision:
Without apparent explanation or provocation, defendant removed two pistols from a safe in his bedroom, held up one of the pistols and fired a single fatal shot at the victim. Defendant testified that he did not recall shooting the victim and had no reason to kill her.
(Packer, 2006 NY Slip Op 05449 at __.)
On those facts, the Fourth Department concluded "that 'defendant's conduct may have reflected recklessness but did not fall within the small, and finite, category of cases evidencing utter depravity, uncommon brutality and inhuman cruelty required for depraved indifference murder'." (Id. at __ [citing People v McPherson, 6 NY3d 202, 216.) Instead of dismissing the depraved indifference murder count outright, the Fourth Department took the increasingly favored remedial step of reducing defendant's conviction to manslaughter in the second degree (see my previous post on this trend here).
It is worth noting that the Fourth Department found this issue unpreserved because defendant's motion for a trial order of dismissal was not renewed at the close of all proof; the Fourth Department reads the Court of Appeals' decision in People v Hynes (97 NY2d 56) as requiring a defendant to make a TOD motion at the close of all proof to preserve a legal sufficiency argument for review. (Packer, 2006 NY Slip Op 05449 at __ ["Defendant failed to renew his motion to dismiss at the close of the People's case after presenting evidence and thus failed to preserve [his legal sufficiency arguments] for our review"].) The Fourth Department's reading of Hynes is by no means widely accepted, and the Second Department has specifically rejected AD4's reading of Hynes and held making a TOD motion at the close of the People's case is sufficient to preserve a legal sufficiency argument. (See< People v Soto, 8 AD3d 683 [2d Dept 2004].) The Court of Appeals may get around to resolving these conflicting interpretations of Hynes eventually, but until the Appeals rule on the issue it is clear the Fourth Department will continue to require defense counsel to renew his or her TOD at the close of all proof in order to preserve legal sufficiency issues for review. Mr. Packer got lucky; the Fourth Department decided to reach his legal sufficiency issue in the interest of justice.