For the second time, at Brooklyn appellate panel has upheld the depraved indifference murder conviction of a driver in a fatal wrong-way collision on a Long Island highway. After an October 2007 night of drinking at a Hempstead club, Franklin McPherson drove the wrong way on the Southern State Parkway for about five miles, traveling between 70 and 75 miles per hour. Witnesses testified that Mr. McPherson made no attempt to avoid oncoming vehicles before colliding with another car, which burst into flames. Mr. McPherson was convicted in September 2008 on a number of counts, including second-degree murder.
The Appellate Division, Second Department, concluded last week in an unsigned 3-1 opinion in People v. McPherson, 08975-2008, that Mr. McPherson was not too drunk “to form the culpable mental state necessary to prove depraved indifference…[T]he record supports a view of the evidence that the defendant was coherent and able to form the requisite mens rea prior to leaving the parking lot.” Justices Anita R. Florio (See Profile), Thomas A. Dickerson (See Profile) and John M. Leventhal (See Profile) joined the majority.
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