Wednesday, February 28, 2007

AD3: Decisions for February 22, 2007

Single gunshot into darkened room = depraved indifference to human life

People v Golden, 2007 NY Slip Op 01427 [available here]

The defendant in Golden "pulled out a revolver and began waving it around" before chasing a man into an apartment. "At the door of [the] apartment, defendant fired a single shot into the apartment. The bullet struck [the victim] in the abdomen and became lodged in her spine." (Golden, 2007 NY Slip Op 01427.) Defendant was convicted of Assault in the First Degree under a "depraved indifference" theory. On appeal, defendant argued that the evidence was not legally sufficient to establish the necessary "depraved indifference" to human life; the Third Department disagreed and affirmed. "Surely a jury was entitled to find that defendant's firing of a weapon into a darkened apartment where he should have perceived that one or more inhabitants were present was reckless conduct, and the jury likewise could infer from the evidence that defendant acted with 'an utter disregard for the value of human life [acting] not because [he intended] harm, but because [he] simply [didn't] care whether grievous harm [resulted] or not.'" (Id., citing People v Suarez, 6 NY3d 202, 214.) This decision is similar to the First Department's recent decision in People v Fields [post here].

Defendant must make motion to withdraw plea to preserve challenge to validity of appeal waiver

People v Sullivan, 2007 NY Slip Op 01428 [available here]

On appeal, the defendant challenged the validity of his waiver of right to appeal executed as part of a plea deal. The Third Department found the issue unpreserved because defendant "never raised this precise issue in a motion to withdraw his plea or to vacate the judgment of conviction." (Sullivan, 2007 NY Slip Op 01428.) The First Department recently overruled its own precedent and reached just the opposite conclusion on this issue. (See People v Hoover, 2007 NY Slip Op 01395 [previous post here].)