Wednesday, July 05, 2006

CA overturns Register, holds "depraved indifference to human life is a culpable mental state"

People v Feingold, __ NY3d __ [available here]

Under section 125.25[2] of the Penal Law, a person is guilty of depraved indifference murder if, "when . . . [u]nder circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person." (Penal Law 125.25[2].) Over 20 years ago, the Court of Appeals held that the "under circumstances evincing a depraved indifference to human life" language did not set up an additional mens rea requirement beyond the recklessness expressly stated in the statute; as stated by the Register Court:

This additional requirement refers to neither the mens rea nor the actus reus. If it states an element of the crime at all, it is not an element in the traditional sense but rather a definition of the factual setting in which the risk creating conduct must occur . . . the present statute defines the crime by reference to the circumstances under which it occurs and expressly states that recklessness is the element of mental culpability required. The concept of depraved indifference was retained in the new statute not to function as a mens rea element, but to objectively define the circumstances which must exist to elevate a homicide from manslaughter to murder.

(People v Register, 60 NY2d 270, 277-278 [1983].)

Over the last few years, a majority of the Court of Appeals has fundamentally changed the way the depraved indifference murder statute is applied in practice, culminating in last year's per curiam opinion in People v Suarez that strictly limited the factual scenarios that could support a depraved indifference murder conviction. (See my previous posts on Suarez here and here.) The Court's previous decision in People v Register was the last depraved indifference precedent to escape assault--until today.

By a 4-3 vote, the Court overturned Register today, instead "explicitly" holding "what the Court in Suarez stopped short of saying: depraved indifference to human life is a culpable mental state." (Feingold, __ NY3d at __.) The majority (in a decision written by Hon. G.B. Smith) reasoned that this conclusion was "implicit" in the recent cases overturning depraved indifference murder convictions where a manifestly intentional act was committed or where the necessary wantonness or cruelty was lacking. From the majority decision:

Here, the trial Judge said he would have acquitted defendant of first degree reckless endangerment (fn1) but felt himself prohibited by Register from doing so. [...] Given the trial judge's findings, we cannot affirm the conviction because we cannot conceive that a person may be guilty of a depraved indifference crime without being depravedly indifferent. When a jury (or here, the court at a bench trial) pointedly says that defendant was not depravedly indifferent, it is not our place to say that he was. [...]

We regard this as a juridical imperative, much the same as in any analogous situation. A person accused of stealing may be guilty of larceny, but a guilty verdict may not stand if the jury finds in a special verdict that the defendant did not intend to take anything. So, too, a person may not be said to have acted with the mens rea of depraved indifference when the jury (or court as fact-finder) tells us that he was not depravedly indifferent.

(Id. at __ [footnote added].)

Judge Ciparick dissented, arguing that "nothing is our precedents requires the imposition of a separate culpable mental state--mens rea--to the element of depraved indifference to human life. [...] There is no need that a defendant subjectively harbor a 'wicked' or 'evil' mind, as now required by the majority." (Id. at __, CIPARICK, J., dissenting.)

While concurring in Judge Ciparick's dissent, Chief Judge Kaye dissented separately to protest the majority's "retreat from a core holding of Register--that the requirement that a defendant act 'under circumstances evincing a depraved indifference to human life' does not constitute a mental state." (Id. at __, KAYE, C.J., dissenting.) From Chief Judge Kaye's dissent:

The majority would limit th[e] level of disregard for the lives or safety of others to circumstances where the defendant consciously has in mind the likelihood of injury to innocent persons and nevertheless deliberately chooses to proceed with the dangerous course of conduct.

While I agree that depraved indifference includes these situations, I fail to understand why it must be restricted to such cases. In my view, "utter indifference" to human life easily covers instances in which a person undertaking a mortal act fails to consider the potential impact on his or her neighbors. Indeed, the failure to be at all concerned with the lives of others is the very epitome of depraved indifference, regardless of whether such utter indifference arises from a malicious wickedness toward humanity or, as here, a complete unmindfulness of one's fellows born of total self-absorption.

(Id. at __.)

Finally, Judge Graffeo dissented separately to note that the majority's decision is at odds "with the language of the reckless endangerment statute [and] the prior rationale of this Court." (Id. at __ [GRAFFEO, J., dissenting].)

n.1: This underlying charge in Feingold was reckless endangerment in the first degree, "which provides that a person violates the statute 'when, under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person.'" (Feingold, __ NY3d at __.) The defendant here escaped a depraved indifference charge by sheer luck; although he tried to commit suicide by turning on gas in his apartment and then zonking out on tranquilizers, nobody was killed when his apartment exploded several hours later.