ALBANY – Extreme intoxication does not excuse drivers from prosecution for depraved indifference murder, a divided state Court of Appeals concluded Thursday.
The court’s 5-2 majority upheld the murder convictions of two drunken drivers and one impaired driver for triggering catastrophic accidents. In two cases, defendants ignored repeated warnings from other drivers as they speeded in the wrong directions on parkways.
“One who engages in what amounts to a high speed game of chicken, with complete disregard for the value of the lives that are thereby endangered, is undoubtedly an individual whose culpability is the equivalent of an intentional murderer,” Chief Judge Jonathan Lippman (See Profile) wrote for the majority.
Limousine and pickup truck involved in a fatal accident in 2006 in Nassau County in which the limousine driver and a 5-year-old girl were killed returning from a wedding. Newsday/Dick Yarwood
The same goes for the third case decided by the court Thursday, involving a woman who killed a pedestrian and severely injured two other motorists while traveling at 80 mph or more on the wrong side of a Staten Island road, Lippman wrote.
“The jury could have concluded that defendant recklessly engaged in conduct that created a grave risk of death to others, with an utter disregard for whether any harm came to those she imperiled,” the chief judge said.
The defendants’ attorneys asked the court to substitute a second-degree manslaughter conviction as an alternative to depraved indifference murder. The manslaughter charge carries a maximum of five to 15 years in prison as opposed to the 25-year-to-life maximum of depraved indifference murder.
Lippman noted that the Legislature has moved since the mid-2000s to create new categories of crimes in Penal Law §§125.14, 120.04-a, for aggravated vehicular homicide and assault for drivers who cause death or serious injuries while impaired by alcohol or drugs.
But Lippman pointed out that those vehicular-oriented statutes did not foreclose the possibility of prosecutors seeking “depraved indifference murder where egregious circumstances warrant that charge, as they do here.”
The chief judge said the cases decided by the court Thursday—People v. Heidgen, 174; People v. Taylor, 176, and People v. McPherson, 188—represented another instance where the court has clarified the application of depraved indifference in criminal cases beginning with its decision in People v. Feingold, 7 NY3d 288 (2006).
Feingold said that depraved indifference is a culpable mental state defined as a “willingness to act not because one intends harm, but because one simply doesn’t care whether grievous harm results or not.”
Lippman wrote that it was important to remember that in all three of the cases before the court Thursday, juries had refused to find that the defendants were too intoxicated to form the “requisite intent” for depraved indifference murder.
Prosecutors do not need to prove a motive for defendants acting in a depraved indifference manner, Lippman said.
“Here, in each case, a rational jury could have found that the defendant, emboldened by alcohol or drugs, appreciated that they or she was engaging in conduct that presented a grave risk of death and totally disregarded that risk, with catastrophic consequences,” Lippman wrote.
Judge Robert Smith (See Profile) said in a dissent in which he was joined by Judge Susan Phillips Read (See Profile) that it is not clear from the evidence that defendants Martin Heidgen and Franklin McPherson were aware that they were going in the wrong direction on limited-access highways prior to the accidents.
“I agree that, if that [awareness] happened, these defendants could be found guilty of depraved indifference murder; and perhaps it did happen—but I do not see how a rational jury could find beyond a reasonable doubt that it did,” Smith wrote.
Read added in a separate dissent that the Legislature “addressed the proper standards for assessing the culpability of drunk drivers who cause fatalities” by the changes to the law it made in the mid-2000s.
The District Attorneys Association filed an amicus curiae brief urging the court to uphold the convictions in all three cases. The group argued that overturning the depraved indifference murder convictions would make it impossible to bring murder charges in egregious drunken driving cases that result in motorist or pedestrian deaths.
Heidgen is serving 18 years to life for the murder of limousine driver Stanley Rabinowitz and 7-year-old Katie Flynn in 2005 as they were returning from a wedding on the Meadowbrook Parkway in Nassau County. Katie was the flower girl.
McPherson is serving 25 years to life for slamming head-on into the Jeep driven by Leslie Burgess on the Southern State Parkway in Nassau County in 2007.
McPherson’s appeal reached the Court of Appeals in the context of an ineffective assistance of counsel claim. The court upheld the veracity of McPherson’s depraved indifference conviction before deciding that his attorney’s failure to bring a motion to dismiss the charge did not represent ineffective representation.
Taylor is serving 22½ years to life for killing pedestrian Larry Simon in Staten Island in 2006.
Both Heidgen and McPherson drank heavily prior to their accidents. Taylor is believed to have taken Ecstacy, consumed a beer and smoked marijuana before her fatal accident.
Assistant Nassau County District Attorney Maureen McCormick represented the prosecution in Heidgen and McPherson and Assistant Staten Island District Attorney Anne Grady argued for prosecutors in Taylor.
Nassau County District Attorney Kathleen Rice called Thursday’s ruling a “monumental victory” against drunken drivers.
“There are times when this crime is murder, and we have to be willing to call it that when we know it will save lives,” Rice said in a statement. “Hopefully, this ruling will give other prosecutors the legal confidence to push for murder convictions for the worst of the worst drunk drivers.”
Jillian Harrington of Monroe Township, N.J., represented Heidgen, Jonathan Edelstein of Manhattan argued on McPherson’s behalf and Erica Horwitz of Appellate Advocates in Manhattan represented Taylor.
Edelstein said Smith and Read “got it exactly right.”
He said his client, Franklin McPherson, was guilty of vehicular manslaughter and “deserves substantial punishment.”
“But our position has been that it was not murder,” he said in an interview. “Courts do a very drastic thing when they say people like Mr. McPherson are just as blameworthy as someone who sets out to kill and does kill. They are saying he is no different than a cold-blooded killer.”
@|Joel Stashenko can be contacted at firstname.lastname@example.org.