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In an opinion with the potential to dramatically alter the course of homicide prosecutions, the New York Court of Appeals Thursday greatly restricted the scope of the depraved indifference murder statute. The court made clear that a provision in the criminal code that permits conviction on second-degree murder when a slaying results from depravity rather than intentional conduct must be used sparingly, and never as a “fallback” for a jury unwilling or a prosecutor unable to establish an intentional act of murder. The court’s per curiam opinion was drafted to ensure that prosecutors no longer routinely pursue alternate and mutually exclusive theories of intentional and depraved-mind murder, which had become a standard practice across the state. It culminates and underscores a series of opinions, most importantly People v. Payne, 3 NY3d 266 [2004], where the court has rebuffed prosecutors for essentially hedging their bets by offering two distinct theories in hopes that the jury would accept one of them. Thursday’s ruling, which reversed two depraved indifference murder convictions involving one-on-one knifings, provides the bench and bar with a tutorial on when to charge depraved-mind murder and, more significantly, when not to. In sum, the court said: � “Depraved indifference murder is not a lesser degree of intentional murder.” � “Someone who intends to cause serious physical injury does not commit depraved indifference murder because the intended victim dies” and “one who acts with the conscious intent to cause serious injury, and who succeeds in doing so, is guilty only of manslaughter.” � A depraved indifference murder is one committed in “utter disregard for the value of human life” and one that reflects “wickedness, evil or inhumanity, as manifested by brutal, heinous and despicable acts.” Examples include firing into a crowd, racing an automobile on a crowded sidewalk, opening a lion’s cage at the zoo, placing a time bomb in a public area, poisoning a drinking well, opening a drawbridge when a train is about to pass and dropping stones from a highway overpass onto vehicles below. � Depraved indifference homicide can also occur when a defendant, acting with the intent not to kill but to harm, “engages in torture or a brutal, prolonged and ultimately fatal course of conduct against a particularly vulnerable victim.” For instance, when a defendant’s conduct “serve[s] to intensify or prolong a victim’s suffering, [it] bespeak[s] a level of cruelty that establishes the depravity mandated by statute.” � A one-on-one shooting or knifing resulting in death is virtually never a depraved indifference murder. � So-called “twin-count” indictments where both intentional and depraved murder is charged should be rare, and twin-count submissions to the jury should be even rarer. In other words, prosecutors should generally make a choice at the outset whether to pursue intentional or depraved indifference murder, and when they do not, the judge should act as a gatekeeper and generally permit only one of the counts to go to the jury. Six times the ruling used the phrase “make clear,” attempting to leave no doubt about what it is saying and “to provide guidance that will enable prosecutors, juries, trial courts and reviewing courts to function without risk of reversal.” The combined decision in People v. Suarez, 178, and People v. McPherson, 179, serves more to clarify prior precedents, especially Payne, than to establish new ones. But it does mark a departure, albeit slight, from the more expansive definition of “depraved indifference” provided in People v. Register, 60 NY2d 270 (1983) and its main progeny, People v. Sanchez, 98 NY2d 373 (2002). The court voted 7-0 to overturn the conviction in McPherson and 6-1 to reverse the guilty verdict in Suarez, with Judge Victoria A. Graffeo dissenting. Suarez/McPherson generated four separate writings. Included were: an unsigned per curiam opinion, which is rare and perhaps an indication that the majority wanted to speak with the full weight of the institution, rather than through the voice of one judge, on a matter it obviously views as critically important; a three-judge concurrence by Judges George Bundy Smith, Albert M. Rosenblatt and Robert S. Smith, who would have explicitly overruled both Register and Sanchez; a concurrence by Judge Susan Phillips Read, who wrote the dissent in Payne but finds herself constrained by the prior precedents and writes separately to say so; and a concurrence in McPherson and dissent in Suarez by Graffeo, who joined Read’s dissent in Payne and expressed concern over the “troubling ramifications” of the ruling, saying there is an “urgent need for the Legislature” to re-examine the Penal Law in light of the decision. Graffeo argued passionately that juries are fully capable of distinguishing between reckless and intentional states of mind, and ought not be precluded from doing so. ‘FALLBACK THEORY’ Much of the main opinion dealt with what the judges view as a dramatic and inappropriate “proliferation of the use of depraved indifference murder as a fallback theory under which to charge intentional killers,” a practice the court said “reflects a fundamental misunderstanding of the depraved indifference murder statute.” The court had been warning prosecutors for years to more precisely frame their homicide theories to fit the crime and the facts of the case, but those admonitions seemed to attract little attention until convictions began to topple, as they did in Payne and People v. Gonzalez, 1 NY3d 464 (2004). In both those cases, defendants who had obviously committed murder had their convictions reversed because they were found guilty of depraved homicides when they actually killed intentionally. The appeals decided yesterday are rooted in unrelated knifings that occurred in Brooklyn and the Bronx, neither of which, as a result of Thursday’s opinion, qualify as depraved indifference murders, if indeed they constitute murder — as opposed to manslaughter — at all. In Suarez, the defendant stabbed his girlfriend three times and left her to bleed to death in their Bronx apartment. Santos Suarez was acquitted of intentional murder but convicted on a depraved indifference count. His conviction and sentence were affirmed by the Appellate Division, 1st Department. In McPherson, defendant Trisha McPherson got into an argument with her ex-boyfriend at his Brooklyn home. She stabbed him once in the chest and immediately called 911, but fled before an ambulance arrived. The man bled to death and McPherson was convicted at a bench trial of depraved indifference murder in a verdict upheld by the Appellate Division, 2nd Department. The court strove to draw a clear much-needed distinction between intentional and depraved indifference murder. It noted that the theory underlying Suarez’s conviction was that he evinced depravity by leaving his victim to die while the theory behind McPherson’s conviction was that she summoned help and therefore did not intend to kill her victim. “When the People can make, and the courts can accept, arguments in which both the rendering of assistance and the failure to render assistance serve to establish depraved indifference, there must be a fundamental misapprehension of the concept of the crime,” the court said. DIFFERENT CRIMES The majority concluded that the Legislature, in codifying murder under distinct theories, had decided that intentional and depraved murder are different crimes, not minor variations on the same theme. It acknowledged that it is difficult to determine whether the defendant’s conscious intent was to kill rather than injure the victim, but said such a determination is necessary. “Depraved indifference murder was never meant as a fallback crime enabling courts and juries to avoid making these difficult decisions,” the majority said. “We therefore make clear that the statutory provision that a defendant act ‘[u]nder circumstances evincing a depraved indifference to human life’ constitutes an additional requirement of the crime — beyond mere recklessness and risk — which in turn comprises both depravity and indifference, and that a jury considering a charge of depraved indifference murder should be so instructed.” RETROACTIVITY OPPOSED The Smith-Rosenblatt-Smith concurrence bemoaned the “unpleasant but necessary duty” the court performs in overturning murder convictions, as it has now done at least four times on essentially the same grounds, but predicted that yesterday’s decisions will ultimately increase “the likelihood that defendants who are proven beyond a reasonable doubt to have committed intentional murder will be properly held to account for that crime.” Additionally, the concurrence addressed a key issue not mentioned in the main opinion, namely, whether the opinion applies retroactively. “We expect, or at least hope, that the rule embodied in this and our other recent decisions will be applied prospectively, and that any impact on already completed prosecutions can be avoided,” Judges George Bundy Smith, Robert Smith and Rosenblatt said in concurrence. “Defendants who committed vicious crimes but who may have been charged and convicted under the wrong statute are not attractive candidates for collateral relief after their convictions become final.” They also noted that the opinion, “by saying ‘almost never,’ avoids taking an absolutist position that would wholly foreclose depraved indifference murder, in a one-on-one situation, by the use of a knife or any other means.” Further, the judges said Thursday’s opinion clearly supports the Legislature’s intent in distinguishing different types of murder, adding that they “welcome the court’s decision today to adhere to that original intention.” ‘FAITH IN JURY SYSTEM’ But Graffeo argued that the court’s approach impeded the ability and right of a jury to ascertain the facts of a given case, including facts attendant to state of mind. She also said the ruling was contrary to the will of the Legislature. “To presume that conflation is wide-spread, one must necessarily believe that juries are incapable of distinguishing between intentional and reckless states of mind, and are similarly unable to determine whether the circumstances of the defendant’s actions created a grave, transcendent risk of death justifying a conviction of second-degree murder or a substantial risk of death warranting a manslaughter conviction,” she wrote. “I have faith in the jury system — jurors are perfectly capable of making these determinations and it is therefore unnecessary for this Court to create artificial categories of depraved indifference murder that are not supported by the language of Penal Law �125.25 (2).” Appearing in Suarez were Mark W. Zeno of the Center for Appellate Litigation for the defendant and Assistant Bronx District Attorney Jonathan Zucker for the prosecution. In McPherson, Brooklyn Assistant District Attorney Sholom J. Twersky argued for the prosecution and Warren S. Landau of Appellate Advocates appeared for the defendant. SENDING A STRONG MESSAGE Norman Olch, chairman of the New York State Bar Association Committee on Courts of Appellate Jurisdiction and associate professor of law at John Jay College of Criminal Justice, said the court was sending a strong message to prosecutors and trial judges. “The Court is saying it means what it says,” he said. “It also appears to me to reflect a respect for the legislative scheme.” Olch said the Legislature has authorized precisely the same penalty for intentional and depraved indifference murder, with a minimum sentence of 15 years to life and a maximum of 25 years to life. He said the court Thursday, once again, rejected what it views as a “backdoor” attempt by prosecutors to get a life sentence in cases that are more appropriately manslaughters, which do not carry a life sentence. Meanwhile, at least one more depraved versus intentional appeal is working its way to Albany, People v. Tyrone Atkinson. In that case, the 2nd Department upheld the conviction and said Payne should be read narrowly. Thursday’s ruling seems contrary to that proposition. Judge Rosenblatt, who wrote Payne, granted leave Nov. 1. Oral arguments have not yet been calendared, according to court spokesman Gary Spencer.

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