After having words with the victim in a bar, the defendant waited for the bar to close and, as the victim left the bar, "defendant pulled a gun from his waist and began shooting." (Carter, 2007 NY Slip Op 04372.) Four shots hit the victim, causing his death. Mr. Carter was charged with both intentional and depraved indifference murder; the jury acquitted on the intentional count, and instead convicted Mr. Carter of depraved indifference murder.
On appeal, Carter argued that his conviction was either not supported by legally sufficient evidence, or was against the weight of the evidence. The Third Department held the legal sufficiency argument was not preserved for review by a specific motion for a trial order of dismissal, and the Court refused to reach the issue in the interest of justice. (Id. at __.) The Court did reach the weight issue, but found "the evidence supports the juyr's conclusion that defendant . . . acted with depraved indifference murder." (Id. at __.) Two other people were close to the shooting victim when the shots were fired, eight shots were fired and only four hit the victim, and one or two of the shots the hit the victim did so "after ricocheting off of the ground or another surface." (Id. at __.) Those facts supported the jury's verdict; from the decision:
The jury could have concluded that defendant remained outside because he was waiting for his friend in the bar or hoped to get back inside to drink more, and that he had the gun in his waistband before he entered the bar or his friend handed it to him immediately prior to the shooting incident. The fact that most of his shots missed or were not direct hits could imply that his wild shooting was intended as a warning or show of bravado, not to inflict harm. Defendant's reckless shooting placed not only Young, but three other individuals in peril of being shot. Weighing the relative strength of conflicting inferences that may be drawn from the conflicting testimony, defendant's conduct could be considered wanton, deficient in moral sense and demonstrating an attitude of utter disregard for human life, as charged by Supreme Court, such that the jury's verdict was not against the weight of the evidence.
(Id. at __.)
Although not a great decision, Carter should have a limited impact. The Court's analysis is a weight of the evidence review based on the elements of depraved indifference murder as that crime was charged to the jury in Carter, i.e. the pre-Suarez understanding that treated the "depraved indifference" component of the crime as a set of objective facts and not as a culpable mental state. If the legal sufficiency argument had been preserved, the Court would have been bound to apply the post-Suarez standard and the result would probably have been different.
There were no other decisions of note from the Third Department's latest packet. The First Department released decisions on May 22 & 24, with only one noteworthy decision (People v Stapkowitz, 2007 NY Slip Op 04342 [available here]. New York Legal Update summarizes that case here.
