ALBANY – The Court of Appeals has been asked to consider a now-familiar offense to the court—the state of mind required for depraved indifference murder—in the unfamiliar context of fatal motor vehicle accidents.

The seven judges heard arguments for more than an hour in three cases Tuesday about whether drivers can be so impaired by alcohol or other substances as to render a conviction for murder impossible.

Throughout the arguments, Chief Judge Jonathan Lippman (See Profile) and other members of the court seemed to struggle with the need to enunciate special rules for depraved indifference murder in motor vehicle crashes, and whether it is logical to apply the crime to those kinds of deaths.

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

Lippman asked if the court should consider crafting an “overarching rule” about crashes, alcohol and depraved indifference murder.

“I think that if we have a collision, that it must operate under the same premise of the other quintessential examples [of depraved indifference murder],” said Assistant Nassau County District Attorney Maureen McCormick, who argued two of the cases on behalf of the prosecution. “Is there such a great risk of death? Is the behavior that creates that grave risk of death such that any objective person looking at this would say, ‘Oh, my God, it’s only a miracle that somebody doesn’t die?’”

“How does intoxication fit into that equation?” Lippman continued.

“It fits into the equation as a question of fact for the jury,” McCormick replied.

For more than a decade, the court has repeatedly distinguished between the mens rea of an intentional homicide and a depraved mind homicide, consistently holding that the two concepts are mutually exclusive and that an act can be either intentional or depraved, but not both (NYLJ, April 26).

The cases before the court Tuesday all concerned particularly horrific car crashes in which drivers were convicted of depraved indifference murder, rather than a lesser charge of manslaughter.

Two of the drivers, Martin Heidgen and Franklin McPherson, collided head-on with vehicles as they drove the wrong way on state parkways in Nassau County.

The third, Taliyah Taylor, was convicted of killing a pedestrian while going at least 80 mph on the wrong side of a Staten Island street.

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 home from a wedding. Katie was the flower girl.

‘A Terrible, Terrible Case’

Judge Eugene Pigott Jr. (See Profile) called the Rabinowitz-Flynn deaths a “terrible, terrible case.” Nevertheless, he admitted that as he read the briefs, he found himself asking whether “there was an overcharge” by the prosecution and “too much sympathy on the part of the jury” for the victims.

“These are really difficult,” Pigott said at another point when the court had shifted its attention to the Taylor case. He noted that the prosecution is “trying to prove that she had enough wits about her to make that kind of conscious decision to not care” about hurting others, but the defense is “trying to prove that she’s so bad off that she can’t make that decision not to care. You’re both trying to prove a negative.”

Jillian Harrington of Monroe Township, N.J., who is representing Heidgen, said “there needs to be something more” in addition to even gross intoxication to warrant a depraved indifference murder charge. She said that in her client’s case, the prosecution failed to show that Heidgen was suicidal or acted as if he knew he was driving on the wrong side of the Meadowbrook Parkway before hitting Rabinowitz’s limousine.

Attorneys for Taylor and McPherson similarly argued that there was insufficient evidence of depravity other than intoxication—or, in Taylor’s case, taking one Ecstasy pill, smoking marijuana and drinking one beer—to justify a murder charge.

“What’s clearly missing here, there is absolutely no evidence, much less proof beyond a reasonable doubt, that Ms. Taylor possessed a ‘wicked, uncommonly brutal or utterly depraved’ state of mind,” said Taylor’s attorney, Erica Horwitz of Manhattan, quoting the Court of Appeals in People v. Suarez, 6 NY3d 202 (2005). “Really, the whole focus of the People was that the results were so gruesome that she was necessarily depraved and inhuman and what was more brutal than what happened here?”

Jonathan Edelstein of Manhattan argued on McPherson’s behalf that McPherson had no idea he was driving the wrong way on the Southern State Parkway when he collided with a Jeep driven by Leslie Burgess, killing her.

Edelstein also contends that his client was deprived of adequate representation by his attorney because of the counsel’s failure to challenge the depraved indifference charge at his trial.

Assistant Staten Island District Attorney Anne Grady said Taylor’s odd behavior just before the fatal accident did not mitigate her guilt of depraved indifference murder.

“Does it make any difference that she was obviously very mentally disturbed?” Judge Robert Smith (See Profile) asked Grady. “If she thought she was driving toward the light and getting in touch with her father? She took off all her clothes. I mean, this lady was weird.”

Grady replied, “The People don’t have to prove that she’s a rational, good, wise person.”

Taylor is serving 22 1/2 years to life for killing pedestrian Larry Simon. McPherson is serving 25 years to life.

While McPherson is seeking a new trial on the ineffective assistance of counsel claim, Heidgen and Taylor want the top charges against them reduced to second-degree manslaughter.

Second-degree manslaughter is a Class C felony, punishable by up to 10 years in prison, while second-degree depraved indifference murder carries sentences of between 15 years to life and 25 years to life.

Appellate Division, Second Department, panels upheld the depraved indifference murder convictions in all three cases, by 3-1 margins in Heidgen and McPherson and unanimously in Taylor.

In all three appeals, the Second Department rejected arguments from the defendants that intoxication rendered them incapable of forming the mental state of depraved indifference.

The cases are People v. Heidgen, 174 and 175; People v. Taylor, 176, and People v. McPherson, 177.