Monday, July 31, 2006

AD4: Single gunshot to chest insufficient to establish "uncommon brutality" required for depraved indifference murder

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.

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.

Wednesday, July 12, 2006

Scheduling note

Despite the glut of new cases from the Court of Appeals and Fourth Department yet to be blogged, posting will be light over the next week or so. Regular posting will resume after that.

Friday, July 07, 2006

AD4 Decision Day (June 2006 term)

The Fourth Department handed down decisions from its June, 2006 term today. Usually, the June term is fairly quiet, because the Court does not hear oral argument and thus the only cases decided are those that are marked "submitted", i.e. no oral argument is requested. Usually, an attorney will only submit a case if the issues are not likely to succeed. However, the Court must have had an inordinate amount of cases held over from other terms, because this is truly an unbelievable packet for criminal defendants. In Monroe County alone, 7 of the 11 criminal decisions were substantive pro-defendant reversals or modifications. That clocks out to an incredible 64 percent reversal rate in Monroe County for the June term. The usual reversal rate hovers between 5-10 percent. Needless to say, there are a lot of cases worthy of comment that I will get to in the coming weeks. For tonight, I'll leave you with . . .

People v Simmons, __ AD3d __ [available here]

In a truly tragic case, appellant Leroy Simmons was convicted of criminally negligent homicide when his car slid through a slippery intersection and struck a woman carrying her infant child. Although the woman wasn't injured, her baby was thrown from her arms and died. The facts (from the Court's decision):

The evidence presented at trial, viewed in the light most favorable to the People, establishes that defendant was driving his vehicle at a rate slightly above the usual speed limit of 30 miles per hour and that, due to road work, 15 miles per hour speed limit signs were posted. The evidence further establishes that defendant belatedly realized that the two victims, a woman and her infant, were in the intersection and that his attempts to stop his vehicle prior to reaching the intersection were futile because the road recently had been resurfaced, resulting in oil and loose gravel on the road. Defendant thus failed to stop at the stop sign, skidded through the intersection and struck the victims, fatally injuring the infant.

(Simmons, __ AD3d at __.)

On those facts, the Court reversed Simmons' conviction for criminally negligent homicide (in the interest of justice, no less), finding that "the evidence is legally insufficient to establish that defendants' acts were 'a gross deviation from the standard of care that a reasonable person would observe' under the circumstances." (Id. at __.) The Court concluded that, while Mr. Simmons' actions "'may well constitute civil negligence . . . the [evidence is legally insufficient to] establish criminal negligence'". (Id. at __ [brackets and emphasis in original].)

Justice Martoche dissented, and would not have reached the unpreserved issue in the interest of justice (and in any event would have found "a valid line of reasoning and permissible inferences" to support the jury's verdict). (Id. at __ [MARTOCHE, J., dissenting].)

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.