Thursday, November 16, 2006

CA: Recent "depraved indifference" decisions not retroactive

Policano v Herbert, 2006 NY Slip Op 08284 [available here]

In response to certified questions from the Second Circuit, the Court of Appeals holds that the Court's recent "depraved indifference" decisions--severely narrowing those factual scenarios supporting a "depraved indifference" murder conviction and holding that "depraved indifference" is a culpable mental state--should not be applied retroactively. From the decision:

[W]e must weigh three factors to determine whether a new precedent operates retroactively: the purpose to be served by the new standard; the extent of the reliance by law enforcement authorities on the old standard; and the effect on the administration of justice of a retroactive application of the new standard. The second and third factors are, however, only given substantial weight "when the answer to the retroactivity question is not to be found in the purpose of the new rule itself." "Thus, where otherwise there could be a complete miscarriage of justice, current constitutional standards that go to the heart of a reliable determination of guilt or innocence have been substituted for those in effect at the time of trial."

This is not such a case. The purpose of our new interpretation of "under circumstances evincing a depraved indifference to human life" is to dispel the confusion between intentional and depraved indifference murder, and thus cut off the continuing improper expansion of depraved indifference murder. Moreover, in the words of the concurring judges in Suarez, the goal is to "make future homicide prosecutions more sustainable, increasing the likelihood that defendants who are proven beyond a reasonable doubt to have committed murder will be properly held to account for that crime." Further, "[d]efendants who commit[] vicious crimes but who may have been charged and convicted under the wrong section of the statute are not attractive candidates for collateral relief after their convictions have become final." In short, non-retroactivity poses no danger of a miscarriage of justice.

Finally, the other two Pepper factors strongly favor non-retroactivity. For two decades prosecutors relied on Register's objectively determined degree-of-risk formulation when making their charging decisions. In addition, retroactive application would potentially flood the criminal justice system with CPL 440.10 motions to vacate convictions of culpable intentional murderers who were properly charged and convicted of depraved indifference murder under the law as it existed at the time of their convictions.

(Policano, 2006 NY Slip Op 08284 [2006].)

New decisions from the Fourth Department tomorrow.