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ALBANY � A man who walked into a Rochester barbershop and pumped 10 bullets into an adversary escaped a murder conviction yesterday when the Court of Appeals held that the jury was wrongly allowed to consider a count of depraved indifference as well as one of intentional homicide. The second-degree murder charge on which the man, Walter Gonzalez, was convicted was based on a theory that the death resulted from a depraved indifference to human life. Jurors found him guilty of that charge and acquitted him of the equally serious intentional-murder charge. Prosecutors said the depraved indifference charge was supported by the defendant’s own statement that he had not set out to commit murder. But the Court of Appeals unanimously held that People v. Gonzalez, 45, was a case of intentional murder or nothing. And it will be nothing. http://nycourts.law.com/CourtDocumentViewer.asp?view=Document&docID=47147 Although Mr. Gonzalez is serving a 15-year term on a weapons possession conviction, he will never be held accountable for what the Court of Appeals strongly suggested was the intentional murder of Edgardo Lespier. Were it not for the gun charge, Mr. Gonzalez would go free because the prosecution and judge, according to the Court, submitted one count too many to the jury. The Monroe County case turned on an issue that has been before the high court on several occasions: the sometimes fuzzy distinction between different homicide charges. Courts regularly deal with whether a killing was “intentional,” “depraved” or “reckless.” The question typically arises because a prosecutor has tried to bootstrap an offense such as manslaughter up to murder or to provide a jury with one more way to find the defendant guilty. This case was somewhat different, in that the alternate theories of the crime stemmed from potentially different interpretations of the defendant’s own statement. Records show that on Jan. 25, 2000, Mr. Gonzalez walked into Hector Carabello’s barbershop and whispered something to a customer. Mr. Gonzalez and that customer left. A short time later, Mr. Gonzalez returned by himself, kicked in the door and began firing at Mr. Lespier, the only customer in the shop. Mr. Gonzalez shot the victim in the face and the chest and, while Mr. Lespier lay on the floor, fired eight more bullets into his head and back. Mr. Gonzalez told authorities that he had been accused of raping Mr. Lespier’s niece and was afraid when he saw him in the barbershop. He said he was carrying the gun only for protection, had no plan to confront or kill Mr. Lespier and “blanked out” during the shooting. A grand jury charged Mr. Gonzalez with two counts of second-degree murder � one count based on a theory of intentional murder, the other on depraved indifference. The jury acquitted on intentional murder but convicted on the depraved indifference count. Mr. Gonzalez was sentenced to 25 years to life. The Appellate Division, Fourth Department, reversed in a 4-1 opinion. It said there was no reasonable view of the evidence to support the theory that Mr. Gonzalez’s conduct was reckless rather than intentional. The Court of Appeals agreed. Distinction Drawn In an opinion by Chief Judge Judith S. Kaye, the Court explained the difference between intentional and depraved indifference murder. “Depraved indifference murder differs from intentional murder in that it results not from a specific, conscious intent to cause death, but from an indifference to or disregard of the risks attending defendant’s conduct,” Chief Judge Kaye said. She said a depraved indifference charge is warranted where, for example, a person shoots into a crowd, races a car down a busy sidewalk or kills someone playing Russian roulette. The charge is appropriate when the defendant is indifferent to the consequences of conduct resulting in death. That, she said, was not the case here. “When defendant shot his victim at close range, he was not recklessly creating a grave risk of death, but was creating a virtual certainty of death born of an intent to kill,” Chief Judge Kaye wrote. “When a defendant’s conscious objective is to cause death, the depravity of the circumstances under which the intentional homicide is committed is simply irrelevant.” The Court said the prosecution’s theory that the defendant may have acted out of fear rather than intent confuses recklessness with emotional disturbance. It said that even if Mr. Gonzalez was emotionally disturbed, that would not render his conduct any less intentional. “It may well be that, had the jury not been invited to consider depraved indifference murder, it would have convicted defendant of intentional murder,” Chief Judge Kaye wrote. “But the choice to proceed under both theories does not exempt this case from the dictates of the law.” The sometimes nuanced differences between intentional and depraved murder has caused consternation in the past. Effect on Prosecutions In its last major pronouncement on the issue, the July 2002 ruling in People v. Sanchez (98 NY2d 373), the Court split 4-3 as it attempted to draw a distinction between the mental states behind the two crimes. In one of the three dissents, Judge Albert M. Rosenblatt, a former prosecutor, lamented that “depraved indifference murder counts have become routine escorts to intentional murder counts.” Yesterday’s ruling suggests that prosecutors who routinely lodge both intentional and depraved indifference charges risk losing altogether. “I think they are reigning in prosecutors who obtain these double indictments where there is no evidence whatever to support a determination that a defendant was acting recklessly,” said Timothy P. Donaher, an assistant public defender in Monroe County who argued for the defendant in Gonzalez. “I don’t think you can deny that he committed murder, but allowing the jury to consider two counts � one of which is totally inappropriate � is what created the problem.” Mr. Donaher speculated that the jury voted as it did because it was appalled by Mr. Gonzalez’s conduct and considered it, in a generic rather than legal sense, depraved. “Despite how [jurors] are instructed by the trial court, they hear that word ‘depraved’ and think it sounds even worse than ‘intentional,’ ” Mr. Donaher said. Monroe County Assistant District Attorney Wendy Evans Lehmann said yesterday that with the defendant’s interjection of his state of mind � his own explanation that the shooting was not intended � the prosecution properly offered the jury the alternative theory of depraved indifference. She added that if the jury believed Mr. Gonzalez and it had not been offered the option of convicting him on depraved indifference murder, the jury would have had no choice but to acquit. “We charged both very deliberately because of the view of the evidence put in by the defendant himself,” Ms. Lehmann said. “Our concern is that if prosecutors are not allowed to charge both intentional and depraved in these circumstances, it really gives the defendant free reign.”

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