Monday, July 17, 2006

CA: "depraved indifference" roundup

In the wake of last week's Feingold decision (overturning People v Register and holding that "depraved indifference" is a culpable mental state), the Court of Appeals did some housekeeping and decided three more cases dealing with "depraved indifference" issues. Here they are, in no particular order:

People v Mancini, __ NY3d __ [available here]

The facts of Mancini fall into the "you can't make this stuff" up category (i.e. death-by-toilet-lid); from the dissent:

According to defendant's trial testimony, after agreeing to a sexual encounter with a 75-year-old man for a specified sum of money and accompanying him to his home, the pair got into the shower. When the man told defendant that he would pay only half of the agreed-upon price, defendant refused to have sex with him. The man responded by grabbing defendant from behind, which led her to believe that she was about to be sexually assaulted. A struggle ensued.

Defendant testified that eventually she got out of the shower, picked up a toilet tank lid and swung the lid in the direction of the man, who had slipped and was now sitting in the tub, striking the lid on the side of the shower. Defendant claimed she swung the lid once more, hitting the man directly on the left side of his head. [...]

Notwithstanding the victim's shattered skull, profuse bleeding and motionless body, defendant told the jury that she "did not think he was hurt that bad", "thought he would need stitches but . . . [that] he would be okay" and that he would "eventually . . . get up and probably call the police himself" and that it was "only a flesh wound."

(Mancini, __ NY3d at __ [Monty Python reference added].)

On those facts, the majority held that "Defendant did not commit depraved indifference murder within the meaning of the statute." (Id. at __.) Judge Graffeo dissented, and would have held that defendant created a grave risk of death by her actions (i.e. bashing the old man in the head with the toilet tank lid) and elevated her score on the "depravity" scale by "abandon[ing] the victim and imped[ing] the possibility of assistance by locking the doors to the garage and bathroom." (Id. at __ [GRAFFEO, J., dissenting].) The majority counters this argument by noting that, if leaving a victim to die is treated as the elevating factor for depraved indifference murder, "[t]hat test would sweep in the vast number of homicides where the killers do not linger with their victims, awaiting aid." (Id. at __.)

People v Atkinson, __ NY3d __ [available here]

In a case interesting for the corrective action taken, the Court in Atkinson agreed that the evidence was insufficient to establish "depraved indifference" murder, but fell short of a straight dismissal. Rather, the Court held that "dismissal of the indictment is neither required nor warranted. The facts are sufficiently different from Payne to enable a jury to reasonably conclude that defendant's actions, although not depraved, were reckless. Among other evidence, testimony at trial could have led a rational jury to infer that the victim moved into a shot that was intended only to scare him." (Atkinson, __ NY3d at __.) Thus, the Court reduced defendant's conviction from "depraved indifference" murder to manslaughter in the second degree. (Id..)

This trend of reducing a depraved indifference murder conviction to manslaughter in the second degree (instead of dismissing the indictment completely and walking a defendant out of prison) has popped up in the Fourth Department. (See People v Packer, 2006 NY Slip Op 05449.) It is an interesting way to solve the counter-intuitive problem inherent in these depraved indifference cases going back to Gonzalez, i.e. completely dismissing a murder indictment where the evidence shows a manifest intent to kill. The first Court of Appeals cases on this issue focused on whether an act manifested such an obvious intent to kill that a conviction based on a lesser, reckless mental state could not be supported by the evidence. (See e.g., People v Gonzalez, 1 NY3d 464 [2004].) Since then, the focus of the Court of Appeals has shifted to the definition of "depravity"; and now that "depravity" is a mental state, it gives appellate courts cover to find conduct reckless but not depraved, and thus salvage a conviction for manslaughter in the second degree. I imagine this will become the favored remedy in cases where an appellate court finds insufficient evidence to support a depraved indifference murder conviction--grant meaningful relief in the form of a reduction to reckless manslaughter, but deny the windfall of a complete dismissal.

The Atkinson decision also held that a defendant does not forfeit "his right to challenge the sufficiency of his conviction for depraved indifference murder by requesting that the jury be charged on the lesser-included offense of manslaughter in the second degree [...]." (Id. at __.) A nice bit of law to have in one's pocket if presenting this issue to one of the preservation-obsessed Appellate Division Departments.

People v Swinton, __ NY3d __ [available here]

In a brief memorandum opinion, the Court reverses a defendant's conviction for assault in the first degree because "the evidence is legally insufficient to prove beyond a reasonable doubt that defendants acted with the culpable mental state of depraved indifference." (Swinton, __ NY3d at __.) Without a discussion of the facts, this case is of limited utility; but it is nonetheless nice to see the words "the culpable mental state of depraved indifference" in a post-Feingold decision and confirm that the Feingold decision was not just a prank pulled on New York's criminal defense bar.