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On April 27, 1998, Kenneth Payne took his 12-gauge shotgun out of his closet, walked to the home of a neighbor who had complained about his dog and shot the neighbor point blank in the chest. The Suffolk County, N.Y., district attorney charged Payne with both intentional murder and depraved indifference murder, which Penal Law �125.25(2) defines as, “Under circumstances evincing a depraved indifference to human life, recklessly engag[ing] in conduct which creates a grave risk of death to another person, thereby caus[ing] the death of another person.” A jury acquitted Payne of the intentional murder charge, but convicted him of depraved indifference murder. A judge sentenced him to the maximum, 25 years to life. Last October, however, the New York Court of Appeals overturned the conviction and Payne went home. The court’s decision already has resulted in a number of vacated convictions and changed the way prosecutors approach murder cases. And attorneys are only now beginning to understand its ultimate ramifications. People v. Payne, 3 NY3d 266, became the third in a series of Court of Appeals decisions that announced the end of a decades-long prosecutorial reliance on a colloquial definition of depraved indifference murder. In Payne, Judge Albert M. Rosenblatt, a leading proponent of the movement to return “depraved indifference” to its specific legal definition, had his first opportunity to write a majority opinion on the subject. The decision followed similar holdings in the 2003 case People v. Hafeez, 100 NY2d 253, and the 2004 case People v. Gonzalez, 1 NY3d 464. (Rosenblatt’s dissent in 2002′s People v. Sanchez, 98 NY2d 373, is generally considered to mark the beginning of the movement.) “The Court’s recent holdings … have made it clear that depraved indifference murder may not be properly charged in the overwhelming majority of homicides that are prosecuted in New York,” Rosenblatt wrote in Payne. The decision set forth the circumstances in which the charge may apply. Depraved indifference entails “extremely dangerous and fatal conduct performed without specific homicidal intent but with a depraved kind of wantonness: for example, shooting into a crowd, placing a time bomb in a public place, or opening the door of the lion’s cage in the zoo,” Rosenblatt wrote, quoting McKinney’s Practice Commentaries. If “a defendant shoots the intended victim once, it could be murder, manslaughter in the first or second degree or criminal negligence (or self-defense),” he added, “but not depraved indifference murder.” When Payne was decided, prosecutors expressed fears that its holding could result in the release of dozens of convicted murderers, including many, like Payne, who had admitted their crimes. “It’s pretty fact-driven. Therefore, nobody could really estimate [the number of appealable cases] with any reliability. So it really was cause for concern,” a senior New York City prosecutor, who asked not to be named, said in a recent interview. To date, in 28 reported decisions involving the issue since Payne, three cases have followed the holding, resulting in two vacated convictions, according to a New York Law Journal search. (The third conviction was reversed on other grounds). However, judges may soon see many more appeals. The district attorney offices in Brooklyn and Queens are each responding to 12 to 15 appeals invoking Payne. Bronx prosecutors recently won two such appeals but expect as many as two dozen more. These numbers may foreshadow a larger wave of reversals to come. Many criminal attorneys anticipate that later this year the Court of Appeals will address the main obstacle appellants encounter in pursuing Payne claims — that the issue was insufficiently preserved for appeal. A ruling that requires lower courts to allow more leeway in arguing the issue was properly preserved could open the floodgates. “That’s a very strong possibility,” worries one Brooklyn prosecutor. CHANGE IN APPROACH Meanwhile, prosectors throughout the state have drastically limited their use of depraved indifference charges. The number of indictments in New York for depraved indifference murder has plummeted from 468 in 2001 (the year before Sanchez) to 256 in 2004, the year Gonzalez and Payne were decided, according to the Division of Criminal Justice Services. In Brooklyn, the borough to experience the largest decline, indictments dropped from 132 in 2001 to 74 in 2004. Prosecutors have also cut their use of “twin” indictments of both intentional and depraved indifference murder. “Nobody told us we couldn’t do it, and for years we were getting [convictions], and defendants were not even objecting to it, and now we’re told not to do it,” said another New York City prosecutor. “So we don’t do it. We’re not stupid.” The frequency of “twin charging” dropped from 55 percent of all intentional murder cases in New York in 2001 to 44 percent in 2004, according to Criminal Justice Services. A spokesperson for the Manhattan District Attorney’s Office said the office is re-evaluating the way it approaches depraved indifference cases. In the Bronx, “like the other offices, we’ve tightened up our indictment process,” said Anthony Girese, counsel to the Bronx district attorney. PROSECUTORIAL HURDLES The line of decisions culminating in Payne “rein in prosecutors from just automatically doing dual-count indictments,” said Timothy Donaher, the Monroe County, N.Y., public defender who argued Gonzalez before the Court of Appeals. “We hadn’t seen in a long, long time a single-count indictment.” In 2001, for example, 20 of the 25 Monroe County defendants charged with depraved indifference were also charged with intentional murder, according to Criminal Justice Services. In Gonzalez, the second of the three Court of Appeals decisions to address the issue, the Court threw out the depraved indifference conviction of a man who shot his adversary eight times — once in the face, once in the head and six times in the chest. Wendy Evans Lehmann, the prosecutor in the Gonzalez appeal, called the rule in Payne limiting. “It definitely makes the charging decision much more difficult. At that point, we don’t always know the full parameters of what the defense may be,” Lehmann said. “If there is no depraved indifference count, then the defense is free to argue extensively to undermine the intent argument and we’re deprived of the right to pursue the reckless mental state in the alternative.” In Gonzalez, she had argued that Walter Gonzalez acted with the requisite depravity by approaching his adversary, in an excited state, carrying a gun. Lehmann added, “I really take exception to any assertion that we just randomly throw these in. We’re not trying to pull the wool over anybody’s eyes.” Donaher, the Monroe County public defender, reluctantly offered a blueprint for prosecutors to avoid the pitfalls of Payne and Gonzalez. “Prosecutors hands aren’t as tied as they think,” he said. “If I were a prosecutor, I would double indict. I would see how the evidence came in, then I would move to dismiss one of the counts.” But prosecutors’ fear of having judges throw out such “twin” indictment has led them to pick one count or the other. In at least one case, that opened the door for an unexpected defense: that the defendant intended to commit the murder. Earlier this year in Rochester, N.Y., a man was accused of killing his 6-week-old daughter by throwing her against the floor with force comparable to a fall from a multi-story building. Declining to twin-indict, the county charged the defendant with only depraved indifference murder. Relying on Payne, public defender Roger Brazill then contended that his client’s actions constituted, if anything, intentional murder, and that the depraved indifference charge should therefore be dismissed. “It was inconceivable under Payne and Gonzalez that there was not an intention to at least cause serious physical injury,” Brazill said from his office last week. The jury disagreed, and convicted the defendant of depraved-indifference murder. A judge sentenced him to 25-years-to-life. The Payne issue, Brazill said, is certain to be revisited on appeal. ‘PAYNE’ ON APPEAL Thus far, three appeals citing Payne or Gonzalez have been granted. In September 2004, in Policano v. Herbert, 2004 U.S. Dist. Lexis 17785, Eastern District of New York Judge John Gleeson granted a habeas corpus petition and ordered a new trial for a defendant who shot his victim three times in the back of the head. “I am constrained to order the release of Policano because he was convicted of recklessly causing a murder that, according to the evidence, he intentionally committed if he committed at all,” Gleeson wrote, citing Gonzalez. In December, in People v. Bennett, 13 A.D. 3d 384, the Appellate Division, 2nd Department, threw out the conviction of a defendant who shot a man in the neck and chest, several times, at close range. “[U]nder the circumstances here, a rational jury could not have concluded that the defendant ‘recklessly’ caused the victim’s death, but rather, could only conclude that he intentionally did so,” the unanimous four-judge panel ruled, citing Payne. And in People v. Russell, reversed in March on other grounds, a 3rd Department panel held that “the verdict convicting him of intentional murder as well as depraved mind murder is inconsistent because guilt of one negates guilt of the other.” Russell in particular could prove troublesome for prosecutors: In the last five years, 29 defendants have been convicted of both of these seemingly mutually exclusive charges, according to Criminal Justice Services. The 25 other cases that cited Payne, Gonzalez or Hafeez affirmed depraved-indifference convictions. Judges were evenly split between two rationales for upholding the guilty verdicts: the evidence supported the finding or the issue had not been preserved for appeal. “Preservation, right now, as an appellate attorney, is our primary concern,” said Donaher, the public defender. “That is one way [appellate judges] can avoid effectively vacating a murder conviction, [by holding that] it has to be perfectly preserved.” Generally, to preserve the issue for appeal the defense must make a trial court motion of dismissal specifically arguing that the prosecution did not present sufficient evidence for a finding of depraved indifference. Finding that an issue is unpreserved is “the judicial cop out,” according to defense attorney and Fordham Law School Professor Abraham Abramovsky. However, Abramovsky said he is hopeful that the Court of Appeals will narrow its view of preservation in depraved-indifference cases. He represents a defendant in the 2nd Department who he suggested might be a good candidate for such flexibility. The case, People v. Petronio, involves a one-on-one killing — a type that Judge Rosenblatt said in Payne “almost never” qualifies as depraved indifference — in which two men fought over 14,000 tabs of Ecstasy. Abramovsky said it appears unlikely that the defense in Petronio satisfied a “highly-technical” interpretation of the rules of preservation. Nevertheless, he said he intended to argue that the attorney’s repeated suggestion that depraved indifference was not the right charge should be sufficient to persuade an appellate panel to hear the case on its merits. Attorneys are trying other strategies to get around the preservation problem. A Monroe County public defender, Drew DuBrin, is seeking leave from the Court of Appeals to argue that the failure of a defendant’s trial attorney to preserve the issue constitutes ineffective assistance of counsel. Few experts believe such a claim will succeed, however. Attorneys for defendants convicted of depraved-indifference murder may also pursue habeas petitions in federal court alleging a violation of the Sixth Amendment’s requirement of establishing proof beyond a reasonable doubt, said Donaher. Putnam County, N.Y., District Attorney Kevin L. Wright, the president of the District Attorneys Association of New York State, said a legislative solution may be needed to decide any unresolved issues. “It certainly is causing a lot of cerebral activity in this area,” Wright said.

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