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Class 7 Clone
Extreme Emotional Distress & Assisted Suicide
  • 1 § 125.25 Murder in the second degree

    A person is guilty of murder in the second degree when:

    1. With intent to cause the death of another person, he causes the death of such person or of a third person;  except that in any prosecution under this subdivision, it is an affirmative defense that:

    (a) The defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be.  Nothing contained in this paragraph shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime;  or

    (b) The defendant's conduct consisted of causing or aiding, without the use of duress or deception, another person to commit suicide.  Nothing contained in this paragraph shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the second degree or any other crime;  or

    2. Under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person;  or

    3. Acting either alone or with one or more other persons, he commits or attempts to commit robbery, burglary, kidnapping, arson, rape in the first degree, criminal sexual act in the first degree, sexual abuse in the first degree, aggravated sexual abuse, escape in the first degree, or escape in the second degree, and, in the course of and in furtherance of such crime or of immediate flight therefrom, he, or another participant, if there be any, causes the death of a person other than one of the participants;  except that in any prosecution under this subdivision, in which the defendant was not the only participant in the underlying crime, it is an affirmative defense that the defendant:

    (a) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof;  and

    (b) Was not armed with a deadly weapon, or any instrument, article or substance readily capable of causing death or serious physical injury and of a sort not ordinarily carried in public places by law-abiding persons;  and

    (c) Had no reasonable ground to believe that any other participant was armed with such a weapon, instrument, article or substance;  and

    (d) Had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury;  or

    4. Under circumstances evincing a depraved indifference to human life, and being eighteen years old or more the defendant recklessly engages in conduct which creates a grave risk of serious physical injury or death to another person less than eleven years old and thereby causes the death of such person;  or

    5. Being eighteen years old or more, while in the course of committing rape in the first, second or third degree, criminal sexual act in the first, second or third degree, sexual abuse in the first degree, aggravated sexual abuse in the first, second, third or fourth degree, or incest in the first, second or third degree, against a person less than fourteen years old, he or she intentionally causes the death of such person.

    Murder in the second degree is a class A-I felony.

  • 2 New York Penal Law § 125.20 Manslaughter in the first degree

    A person is guilty of manslaughter in the first degree when:

    1. With intent to cause serious physical injury to another person, he causes the death of such person or of a third person;  or

    2. With intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he acts under the influence of extreme emotional disturbance, as defined in paragraph (a) of subdivision one of section 125.25.  The fact that homicide was committed under the influence of extreme emotional disturbance constitutes a mitigating circumstance reducing murder to manslaughter in the first degree and need not be proved in any prosecution initiated under this subdivision;  or

    3. He commits upon a female pregnant for more than twenty-four weeks an abortional act which causes her death, unless such abortional act is justifiable pursuant to subdivision three of section 125.05;  or

    4. Being eighteen years old or more and with intent to cause physical injury to a person less than eleven years old, the defendant recklessly engages in conduct which creates a grave risk of serious physical injury to such person and thereby causes the death of such person.

    Manslaughter in the first degree is a class B felony.

    - See more at: http://codes.findlaw.com/ny/penal-law/pen-sect-125-20.html#sthash.3jEFh7Lo.dpuf

  • 3 People v. Roche

    1

    98 N.Y.2d 70 (2002)
    772 N.E.2d 1133
    745 N.Y.S.2d 775

    2
    THE PEOPLE OF THE STATE OF NEW YORK, Appellant,
    v.
    RAMON ROCHE, Respondent.
    3

    Court of Appeals of the State of New York.

    Argued May 2, 2002.
    Decided June 4, 2002.

    4

    [71] Robert M. Morgenthau, District Attorney, New York City (Sheryl Feldman and Mark Dwyer of counsel), for appellant.

    5

    Office of the Appellate Defender, New York City (Eunice C. Lee, Richard M. Greenberg and Daniel A. Warshawsky of counsel), for respondent.

    6

    Salans Hertzfeld Heilbronn Christy & Viener, New York City [72] (Jane E. Manning and Maria T. Galeno of counsel), for Sanctuary for Families' Center for Battered Women's Legal Services and another, amici curiae.

    7

    Chief Judge KAYE and Judges SMITH, LEVINE, CIPARICK, WESLEY and ROSENBLATT concur.

    8

     

    9
    OPINION OF THE COURT
    10

     

    11
    GRAFFEO, J.
    12

    In this prosecution stemming from the brutal stabbing by defendant of his common-law wife, the Appellate Division reversed defendant's conviction of murder in the second degree based on the trial court's failure to charge the jury concerning the affirmative defense of extreme emotional disturbance. Because the evidence at trial was insufficient to support the defense of extreme emotional disturbance, we reverse the Appellate Division order and reinstate defendant's conviction.

    13

    Defendant was charged with murder in the second degree based on the December 1991 stabbing death of Lillian Rivera in the Manhattan apartment they shared. He was convicted of murder in the second degree at his first trial, at which he neither requested nor received an extreme emotional disturbance charge. The conviction was reversed on appeal due to an improper Allen charge and the case was remitted for retrial (see 239 AD2d 270).

    14

    At the second trial, the People offered proof that the victim was stabbed 12 to 14 times in the face, back and chest. She was discovered lying face up on the kitchen floor of the blood-spattered apartment. A trail of blood on the furniture, walls and floors throughout the living room, hallway and kitchen suggested a violent struggle. Forensic evidence indicated the two deep, and ultimately fatal, stab wounds to the victim's chest had been inflicted last, after she had collapsed on the kitchen floor. The murder weapon was never found.

    15

    Gilberto Franco and Norma Ruiz, tenants in the apartment building who were acquainted with defendant and the victim, testified at trial that they had seen the couple arguing in the building lobby earlier that day. Franco recounted that in a conversation he had with defendant two weeks before the stabbing, [73] defendant confided that his wife was crazy and hooked on drugs, that he was tired and wanted to leave but that he couldn't live at his sister's house. At around 4:00 P.M. on the day of the crime, while in his bedroom, Franco heard defendant and the victim engaged in a loud argument inside their apartment, which was connected to his by an airshaft. When Franco heard the sound of glass breaking, he stopped listening and turned on some music.

    16

    About 40 or 50 minutes later, Franco and Ruiz heard defendant yelling in the hallway outside their apartment. They opened their door and saw defendant running down the stairs, exclaiming that his wife had killed herself and that someone should call the police. Defendant was carrying a small brown bag under his arm. After Franco contacted the police from a nearby store, he and a friend went to defendant's apartment. Franco testified that he did not enter the apartment but pushed the door open wide enough to view the interior from the hallway. The apartment was in disarray and there was blood smeared on the walls. Franco saw defendant emerge carrying a duffle bag. When asked where he was going, defendant replied: "I have to take everything out of here because the police is going to check it out." Defendant stated that he was taking the bag to his sister's house but would return to talk to the police. He then left the building with the duffle bag.

    17

    According to the testimony of Phillip Bell, defendant soon arrived at an apartment in the adjacent building. Bell had no prior acquaintance with defendant but was visiting the tenant. When defendant first arrived, he removed two sweaters that he was wearing and carefully inspected them. He then ingested crack and heroin. Defendant told Bell that "Mama" was dead and he had killed her. He explained that she had been "going crazy" and "tearing up the place" and that he had been "going back and forth upstairs [and] checking on her" all day. After socializing with Bell in a back room for a while, defendant indicated that he had to leave but did not want to be seen by another visitor who had since arrived. Defendant instructed Bell to usher the guest into the bathroom and, once this was accomplished, he departed.

    18

    Defendant went to his sister's apartment where he was greeted by Pedro Malave, her son-in-law. Defendant told Malave that his wife was dead and that she had tried to kill herself two days before. Defendant changed his socks after requesting a clean pair and threw the pair he had been wearing in the garbage. When defendant's sister arrived, he had a private [74] conversation with her in which he revealed that, in the course of an argument, he had hit his wife and believed that she was dead. She advised him to go to the police.

    19

    Thereafter, defendant appeared at the police station and announced: "My wife killed herself. I want to find out who did this. That's why I'm here." Defendant was issued Miranda warnings and he agreed to make a written statement, which the People introduced in evidence at trial. Defendant told the police that his wife had been out the night before and had not come home until 6:00 A.M. She had slept most of the morning but then sent him on a series of errands that afternoon, first requesting that he retrieve some items she had thrown out of the window, then asking him to purchase pain reliever, and later sending him to buy cigarettes. Defendant indicated he had complied with these requests.

    20

    Defendant further recounted that at around 4:00 P.M. he left the apartment to buy his wife some soup and talked to a neighbor for a while. Upon returning home, he alleged the door was open and there was blood in the living room. He called out to his wife but did not see her until he found her body in the kitchen. He then stated that he ran through the apartment building screaming that "Mama killed herself." He asked a woman to call the police and then ran down the street to his aunt's apartment. When his aunt did not answer the door, he proceeded to his sister's home. He stated that he spoke with Malave and his sister, but indicated only that he told them "what had happened" at his house. After briefly returning to his aunt's residence, he contended he went to the police. The statement does not contain any reference to a visit with Bell.

    21

    Defendant did not testify at trial and presented one witness in his defense, a forensic pathologist, who opined that the wounds the victim suffered were consistent with an attack by a stranger because there was no mutilation or disfigurement. The thrust of the defense was that the police had the "wrong man" and had rushed to judgment in charging defendant with the crime without searching for the true killer. The defense emphasized the absence of physical evidence linking defendant to the stabbing, his lack of a motive to kill his wife and the failure of the police to conduct various tests which the defense contended might have revealed the identity of the actual perpetrator.

    22

    At a charge conference conducted prior to the summations, defendant requested that the lesser included offense of extreme [75] emotional disturbance manslaughter be submitted to the jury, but made no reference to a charge on the affirmative defense of extreme emotional disturbance. Defense counsel stated that a manslaughter charge "may not in fact be supported by the evidence objectively" but indicated the request was based on "what we anticipate the Prosecution's closing argument to encompass" given that the People had apparently argued at the first trial that defendant committed the murder after being provoked into a fit of rage. The People objected to the manslaughter charge, asserting there was no evidence of extreme emotional disturbance. Supreme Court denied the charge-down request. The jury convicted defendant of murder in the second degree and he was sentenced to 25 years to life in prison.

    23

    The Appellate Division reversed, concluding Supreme Court erred in failing to charge extreme emotional disturbance as an affirmative defense. One Justice dissented and granted the People leave to appeal to this Court.

    24

    The affirmative defense of extreme emotional disturbance is addressed in Penal Law § 125.25 (1) (a) and § 125.20 (2), which define the elements of murder in the second degree and manslaughter in the first degree. Read in tandem, these statutes provide that a defendant who proves by a preponderance of the evidence that he or she committed a homicide while "under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse" is guilty of manslaughter and not murder. The "defense allows a defendant charged with the commission of acts which would otherwise constitute murder to demonstrate the existence of mitigating factors which indicate that, although [] not free from responsibility for [the] crime, [defendant] ought to be punished less severely" (People v Casassa, 49 NY2d 668, 675, cert denied 449 US 842 [1980]). As we recently observed in People v Harris (95 NY2d 316, 318 [2000] [quoting Casassa, 49 NY2d at 680-681] [internal quotations omitted]), the Legislature recognized when it created the extreme emotional disturbance defense that some homicides are worthy of mitigation because they "result from an understandable human response deserving of mercy."

    25

    A defendant cannot establish an extreme emotional disturbance defense without evidence that he or she suffered from a mental infirmity not rising to the level of insanity at the time of the homicide, typically manifested by a loss of self-control. And not all mental infirmities merit a manslaughter charge based on extreme emotional disturbance (Casassa, 49 NY2d at 677). To prove such an affirmative defense, a defendant must [76] demonstrate, first, that he or she acted under the influence of an extreme emotional disturbance and, second, that there was a reasonable explanation or excuse for that disturbance. The first, subjective element is met if there is evidence that defendant's conduct at the time of the incident was actually influenced by an extreme emotional disturbance. The second is an objective element and requires proof that defendant's emotional disturbance was supported by a reasonable explanation or excuse. This is "determined by viewing the subjective mental condition of the defendant and the external circumstances as the defendant perceived them to be at the time, however inaccurate that perception may have been, and assessing from that standpoint whether the explanation or excuse for [the] emotional disturbance was reasonable" (Harris, 95 NY2d at 319 [quoting Casassa, 49 NY2d at 679] [internal quotations omitted]).

    26

    A defendant who pursues an inconsistent defense at trial, such as outright denial of involvement in the crime, may nevertheless be entitled to a manslaughter charge based on extreme emotional disturbance (see People v White, 79 NY2d 900, 903 [1992]). And it is possible for a defendant to establish the presence of such a disturbance without psychiatric testimony (People v Moye, 66 NY2d 887, 890 [1985]). These circumstances do, however, impact whether sufficient evidence to support the defense has been presented at trial (see White, 79 NY2d at 903). In the absence of the requisite proof, an extreme emotional disturbance charge should not be given because it would invite the jury to engage in impermissible speculation concerning defendant's state of mind at the time of the homicide (People v Walker, 64 NY2d 741, 743 [1984]).

    27

    Applying these principles to this case, we conclude that defendant was not entitled to a manslaughter charge-down based on extreme emotional disturbance because the proof was insufficient to support either element of the defense.[*] Beginning with the subjective element, the record is devoid of evidence that he actually suffered from a mental infirmity at the time of [77] the stabbing. Defendant cannot rely on his statements to the police to establish the presence of an extreme emotional disturbance since he asserted that he had not harmed his wife in any respect. Evidence of mental infirmity is not discernible from defendant's remarks to Bell and his sister because he neither claimed that he suffered a loss of self-control nor used any other language suggesting that he killed the victim while under the influence of a mental disability. Similarly, defendant's behavior prior to and immediately after the crime was not indicative of extreme emotional disturbance. Soon after the killing, defendant contrived a false explanation for the victim's wounds, telling his neighbors that she had committed suicide. Moments later, defendant had the presence of mind to gather items in a duffle bag and remove them from the apartment so they would not be discovered by the police—conduct inconsistent with the loss of self-control associated with the defense. Bell's testimony regarding defendant's conversations and drug consumption, particularly his attempt to evade detection by another guest at the apartment, also do not indicate a disturbed state of mind.

    28

    This case is similar to People v White (79 NY2d 900) which also involved a defendant who killed his wife in the apartment they shared. Like this defendant, White claimed that he had no involvement in the incident but had discovered his wife dead in their apartment. As in this case, no psychiatric evidence was proffered to support an extreme emotional disturbance defense, nor did defendant tell the police or any other witness that he had experienced a loss of self-control or other mental disturbance which caused him to stab his wife. There we held that defendant was not entitled to the charge-down, observing that the record was barren of any statement of defendant or other evidence offered by any witness which suggested defendant actually suffered from an extreme emotional disturbance at the time of the homicide.

    29

    Defendant contends that the brutal nature of the stabbing constituted evidence that he acted under the influence of a mental infirmity. While proof concerning the nature of the wounds defendant inflicted is relevant (see generally, People v Wood, 79 NY2d 958 [1992]), we have never held that a jury may infer the presence of an extreme emotional disturbance based solely on proof that the crime was especially violent or brutal. This is so because violence and brutality are not necessarily indicative of a loss of self-control or similar mental infirmity, nor is brutality generally more deserving of mercy. Where [78] we have referenced the nature or severity of the wounds, the probative value of such evidence has been linked to other compelling evidence of extreme emotional disturbance. For example, we observed in People v Moye (66 NY2d at 890) that "[d]efendant's savage acts of mutilating and decapitating his victim, coupled with his statements to the police and District Attorney that `something snapped' inside him when [the victim] mocked and taunted him, that he went `bananas' and he needed help, were evidence of a loss of self-control." The approach defendant suggests would subvert the purpose of the affirmative defense by automatically providing the benefit of a manslaughter charge-down to every defendant who commits a particularly brutal or violent homicide—a result the Legislature certainly did not intend.

    30

    Even if sufficient evidence of the subjective element of extreme emotional disturbance were present in this case, proof of the objective element is lacking. Defendant points to the fact that he and the victim had been seen arguing and that the victim apparently sent him on a number of errands on the afternoon of the murder, causing him to climb the stairs to the fifth-floor apartment numerous times. This falls far short of the type of tumultuous relationship that might meet the objective component when coupled with other provocation (see White, 79 NY2d at 903). In the absence of proof that defendant's history or mental status rendered him unusually sensitive to these verbal exchanges and demands, no reasonable jury could have concluded that a resulting loss of self-control or similar disability constituted "an understandable human response deserving of mercy" under these circumstances (see Casassa, 49 NY2d at 680-681).

    31

    Finally, we note that the People's closing argument does not provide an evidentiary basis for an extreme emotional disturbance charge. As cogently stated by the dissenting Justice at the Appellate Division, statements in a summation are not evidence and may not supply proof supporting a charge request. Although certain words and phrases used by the prosecutor may be suggestive of extreme emotional disturbance, when viewed in context it is evident the remarks were consistent with the People's theory of intentional murder. The clear import of the summation was that defendant's actions were motivated by intense anger—not that they resulted from a loss of self-control or other mental infirmity.

    32

    We have considered defendant's contentions relating to this Court's jurisdiction over this appeal and find them to be without merit.

    33

    [79] Accordingly, the order of the Appellate Division should be reversed and the conviction reinstated.

    34

    Order reversed and judgment of Supreme Court, New York County, reinstated.

    35

    [*] Defendant did not characterize his request for the manslaughter charge-down as seeking a charge on the affirmative defense of extreme emotional disturbance. However, due to the interplay between Penal Law § 125.20 (2) and § 125.25 (1) (a), a request for an extreme emotional disturbance manslaughter charge amounts to a request that the jury be instructed concerning the affirmative defense of extreme emotional disturbance. Given the People's comments in opposition to the defendant's request and Supreme Court's stated rationale in denying the charge, the issue is preserved as a question of law for this Court's review (see CPL 470.05 [2]).

  • 4 People v. McKenzie

    1

    19 N.Y.3d 463 (2012)
    2012 NY Slip Op 5090

    2
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
    v.
    DONYELL J. McKENZIE, Appellant.
    3

    No. 133.

    4

    Court of Appeals of New York.

    Argued May 31, 2012.
    Decided June 26, 2012.

    5

    [464] Timothy P. Donaher, Public Defender, Rochester (James Eckert of counsel), for appellant.

    6

    Sandra Doorley, District Attorney, Rochester (Leslie E. Swift of counsel), for respondent.

    7

    Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur.

    8

     

    9
    [465] OPINION OF THE COURT
    10
    Chief Judge LIPPMAN.
    11

    Defendant was convicted of second degree murder upon evidence that he killed Tyffany Porter, his fiancée and paramour of some two years, by inflicting numerous knife wounds. Although he had sought to interpose the affirmative defense that his homicidal acts had been committed under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse (see Penal Law § 125.25 [1] [a]), and upon that theory to afford the jury the option of returning a verdict of manslaughter in the first degree instead of murder (see id.), the trial court refused to charge the defense. While acknowledging that the evidence of the homicide's manner of commission was indicative of a loss of self control on defendant's part, the court deemed the charge unwarranted absent proof that defendant suffered from an underlying "mental infirmity." Thereafter, in affirming defendant's conviction, the Appellate Division found the denial of the charge proper, concluding that defendant's "conduct before, during and after the offense [was] inconsistent with the loss of self-control associated with the defense" (81 AD3d 1375 [2011] [internal quotation marks and citation omitted]). A Judge of this Court granted defendant's application for permission to appeal (17 NY3d 819 [2011]), and we now reverse.

    12

    Defendant did not testify or otherwise present evidence. His request for an extreme emotional disturbance charge was based entirely on proof elicited during the People's case. That proof was that there had been a heated argument between defendant and Ms. Porter secondary to Ms. Porter's refusal to engage in sexual relations with defendant and her closely ensuing disclosure that she, in retaliation for what she believed had been similar conduct on defendant's part, had been unfaithful to defendant with one of his friends. During the argument, defendant retrieved a knife from the kitchen of the couple's apartment, returned to the bedroom, and, as the mutually abusive exchange escalated from words to blows, stabbed Ms. Porter some 47 times, killing her. There was further evidence that, from the scene of the homicide, defendant drove to the home of [466] a friend, Latonya Whitfield, to whom he eventually admitted the stabbing, claiming that he "just snapped." Whitfield testified that, at the time, defendant appeared "spaced out" and "out of it." A short time later, defendant called 911 to surrender. In explaining what had happened, he told the dispatcher that he "just lost it" and had "blacked out."

    13

    Defendant made no attempt to conceal what he had done. He left the homicide weapon in open view and when he was taken into custody still had blood on his clothing and shoes. On the way to the police station he admitted that he had "f ... d up." He confessed to the stabbing in station house interviews, at one point apparently overcome with emotion, and executed a written statement in which he admitted that he had used the kitchen knife against Ms. Porter. He explained that he was scared, panicked and lost control; Ms. Porter, he said, enraged by suspicions of infidelity, had previously pulled knives on him, slept with a razor under her pillow, and had caused him to lose sight in his left eye when, during a prior altercation, she shattered a window of a car in which he was sitting.

    14

    In judging whether to accede to a defendant's request to charge an affirmative defense, a court is bound to view the evidence in the light most favorable to the defendant (People v Butts, 72 NY2d 746, 750 [1988]), an exercise understood to be incompatible with weighing the evidence to resolve competing inferences (see id.). The charge must be given if there is evidence reasonably supportive of the defense, even if there is other evidence which, if credited, would negate it (id.). We have repeatedly recognized that these general principles are applicable where the defense sought to be charged is that of extreme emotional disturbance (see People v Moye, 66 NY2d 887, 889 [1985]; accord People v Harris, 95 NY2d 316, 320 [2000]; People v White, 79 NY2d 900, 903 [1992]). If, then, the evidence would have permitted defendant's jury reasonably to conclude by a preponderance (Penal Law § 25.00 [2]) that, at the time of the homicide, he was affected by an extreme emotional disturbance, and that that disturbance was supported by a reasonable explanation or excuse rooted in the situation as he perceived it (see People v Casassa, 49 NY2d 668, 678-680 [1980], cert denied 449 US 842 [1980]),[*] the charge should have been given. Although, it is true, as the Appellate Division evidently found, [467] that the evidence in the aggregate would have permitted the jury to reject defendant's claim of emotional disturbance and loss of control, it was instead the viability of the alternative, contrary inference — that defendant in fact experienced an emotional break which caused him to "snap" — that should have guided the trial court's determination of the charge request.

    15

    As the trial court recognized, the sheer number and redundancy of the knife wounds inflicted on Ms. Porter was indicative of defendant's loss of control. The court denied the charge instead upon the ground that there was no proof that defendant had a "mental infirmity that r[ose] short of a mental disease or defect." But the purpose of this quoted language, as it has been used in our decisions to describe the predicate for an extreme emotional disturbance defense (see People v Patterson, 39 NY2d 288, 302 [1976], affd 432 US 197 [1977]; see also People v Roche, 98 NY2d 70, 75 [2002]), patently was not to tether the defense to proof of an underlying psychiatric disorder; "mental infirmity" in the presently relevant context refers more broadly to any reasonably explicable emotional disturbance so extreme as to result in and become manifest as a profound loss of self-control. We have in fact recognized that the subjective element of the extreme emotional disturbance defense may be inferred simply from circumstances indicative of a loss of control and, concomitantly, that it may be established without psychiatric evidence (People v Roche, 98 NY2d at 76; Moye, 66 NY2d 887, 890 [1985]). In Moye, for example, extreme emotional disturbance was deemed inferable simply from evidence of an uncommonly savage assault together with the victim's initial sexual taunting and the assailant's closely following admissions, in the course of which he stated that he "snapped" and "went bananas" (66 NY2d at 890 [internal quotation marks omitted]). It is true that in Roche we said that a brutal assault would not itself suffice to demonstrate extreme emotional disturbance (98 NY2d at 77-78). Here, however, as in Moye, the evidentiary predicate for the defense was augmented by inculpatory admissions to third parties, including the police, in which defendant stated that he had "snapped" after the victim rejected his overtures and disclosed her infidelity. There were also reports of defendant's appearance and demeanor consistent with his having been affectively [468] disturbed in the assault's near aftermath. Under the circumstances of record, then, the first prong of the defense — that defendant at the time of the assault was subjectively overtaken by an extreme emotional disturbance — was sufficiently made out to support defendant's charge request.

    16

    Whether the evidence also was adequate to support the additionally requisite inference that the situation, as defendant perceived it, reasonably occasioned the emotional response he claims to have experienced, might well be understood to pose a closer question. On the one hand, taunting over sexual matters and disclosures of sexual infidelity in the context of established intimate relationships are historically the most commonly accepted mitigating circumstances for otherwise murderous behavior. On the other hand, this was not a situation in which defendant was ridiculed about impotence or some other potentially humiliating sexual deficit (cf. Moye, 66 NY2d at 888-889) or in which he reacted to the sight of his paramour in flagrante (see e.g. Patterson, 39 NY2d at 291); here, the claimed provocation was perhaps somewhat less obviously volatile. Inasmuch, however, as the relevant inquiry was whether the evidence, viewed most favorably to defendant, presented a triable question, we believe that the issue of the reasonableness of defendant's explanation should have been put to the jury. Although it did not require it, the evidence plausibly allowed the conclusion that Ms. Porter's sexual rejection of defendant, together with her closely following abrupt and apparently vengeful disclosure of her infidelity with his friend, precipitated not just ordinary anger or even rage, but an onrush of emotion leaving defendant bereft of self-control. Whether that explanation ultimately was worthy of credit was for the jury to decide based on its appreciation of the entire body of evidence.

    17

    A claim of extreme emotional disturbance must, of course, be credibly supported if the defense upon which it rests is to be submitted to the jury (see People v White, 79 NY2d 900, 902-903 [1992], citing Moye, 66 NY2d at 890 n), but that requirement was not intended to cast the trial court in the fact-finding role properly reserved to the jury (see id.). The court's contemplated gate-keeper function is under our cases limited to excluding claims that are patently insufficient, either by reason of the absence of evidence from which the claimed disturbance might be reliably inferred (see e.g. Roche, 98 NY2d at 77) or for lack of proof of any but a speculative relation between the alleged disturbance and a plausible triggering circumstance (see e.g. id. at [469] 78; People v Walker, 64 NY2d 741, 743 [1984]) or between the disturbance and the defendant's homicidal acts (see People v White, 79 NY2d at 902-904). This case involved none of these objectively discernible deficiencies. Nor was it one in which the assertion of the defense was an obvious afterthought to avoid a murder conviction, and in that light "incredible." Here, as noted, the defense was significantly — and a jury might have found authentically — rooted in inculpatory statements closely following the homicide and in third-party observations of defendant's conduct, appearance and demeanor during that same period.

    18

    "The purpose [of the extreme emotional disturbance defense] was explicitly to give full scope to what amounts to a plea in mitigation based upon a mental or emotional trauma of significant dimensions" (Wechsler, Codification of Criminal Law in the United States: The Model Penal Code, 68 Colum L Rev 1425, 1446 [1968]; see Casassa, 49 NY2d at 679). The consonant claim made by this defendant was not that his admitted homicidal conduct was excusable, only that it should not be penalized as murder because he acted under the influence of an understandable, traumatically induced emotional disturbance. The question thus framed by defendant's charge request was not whether defendant should be held criminally responsible for killing Ms. Porter, but whether instead of a conviction for murder, there should be one for first degree manslaughter based on what was for all intents and purposes, a plea in mitigation. Given the evidence in the case, we perceive little danger that a jury in choosing between the highly punitive options occasioned by the proposed defense would have been reduced to speculation. That being so, it was the jury, and not the court, that should in the end have determined the defense's merit.

    19

    The People's argument that defendant's failure to afford them CPL 250.10 (2) notice should be preclusive of an extreme emotional disturbance defense, raised for the first time at the Appellate Division, is not preserved for our review (see People v Jones, 85 NY2d 998, 999 [1995]).

    20

    Accordingly, the order of the Appellate Division should be reversed and a new trial ordered.

    21

    Order reversed, etc.

    22

    [*] As is here pertinent, Penal Law § 125.25 (1) (a) provides that it is an affirmative defense to murder that "[t]he defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be" (emphasis supplied).

  • 5 Class 8 (Feb 13): Involuntary Homicide

    This class will cover 

    Depraved Indifference Murder

    Felony Murder, Beginnings

    • 5.1 § 125.25 Murder in the second degree

      A person is guilty of murder in the second degree when:

      1. With intent to cause the death of another person, he causes the death of such person or of a third person;  except that in any prosecution under this subdivision, it is an affirmative defense that:

      (a) The defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be.  Nothing contained in this paragraph shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime;  or

      (b) The defendant's conduct consisted of causing or aiding, without the use of duress or deception, another person to commit suicide.  Nothing contained in this paragraph shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the second degree or any other crime;  or

      2. Under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person;  or

      3. Acting either alone or with one or more other persons, he commits or attempts to commit robbery, burglary, kidnapping, arson, rape in the first degree, criminal sexual act in the first degree, sexual abuse in the first degree, aggravated sexual abuse, escape in the first degree, or escape in the second degree, and, in the course of and in furtherance of such crime or of immediate flight therefrom, he, or another participant, if there be any, causes the death of a person other than one of the participants;  except that in any prosecution under this subdivision, in which the defendant was not the only participant in the underlying crime, it is an affirmative defense that the defendant:

      (a) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof;  and

      (b) Was not armed with a deadly weapon, or any instrument, article or substance readily capable of causing death or serious physical injury and of a sort not ordinarily carried in public places by law-abiding persons;  and

      (c) Had no reasonable ground to believe that any other participant was armed with such a weapon, instrument, article or substance;  and

      (d) Had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury;  or

      4. Under circumstances evincing a depraved indifference to human life, and being eighteen years old or more the defendant recklessly engages in conduct which creates a grave risk of serious physical injury or death to another person less than eleven years old and thereby causes the death of such person;  or

      5. Being eighteen years old or more, while in the course of committing rape in the first, second or third degree, criminal sexual act in the first, second or third degree, sexual abuse in the first degree, aggravated sexual abuse in the first, second, third or fourth degree, or incest in the first, second or third degree, against a person less than fourteen years old, he or she intentionally causes the death of such person.

      Murder in the second degree is a class A-I felony.

    • 5.2 § 125.15 Manslaughter in the second degree

      A person is guilty of manslaughter in the second degree when:

      1. He recklessly causes the death of another person;  or

      2. He commits upon a female an abortional act which causes her death, unless such abortional act is justifiable pursuant to subdivision three of section 125.05;  or

      3. He intentionally causes or aids another person to commit suicide.

      Manslaughter in the second degree is a class C felony.

    • 5.3 § 120.25 Reckless endangerment in the first degree

      A person is guilty of reckless endangerment in the first degree when, under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person.

      Reckless endangerment in the first degree is a class D felony.

    • 5.4 People v. Suarez

      1

      6 N.Y.3d 202 (2005)
      844 N.E.2d 721
      811 N.Y.S.2d 267

      2
      THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
      v.
      SANTOS SUAREZ, Appellant.
      THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
      v.
      TRISHA McPHERSON, Appellant.
      3

      Court of Appeals of the State of New York.

      Argued November 16, 2005.
      Decided December 22, 2005.

      4

      [203] Center for Appellate Litigation, New York City (Mark W. Zeno and Robert S. Dean of counsel), for appellant in the first above-entitled action.

      5

      [204] Robert T. Johnson, District Attorney, Bronx (Jonathan Zucker, Joseph N. Ferdenzi and Peter D. Coddington of counsel), for respondent in the first above-entitled action.

      6

      Warren S. Landau, New York City, and Lynn W.L. Fahey for appellant in the second above-entitled action.

      7

      Charles J. Hynes, District Attorney, Brooklyn (Sholom J. Twersky, Leonard Joblove and Anne C. Feigus of counsel), for respondent in the second above-entitled action.

      8

      Chief Judge KAYE and Judges G.B. SMITH, CIPARICK, ROSENBLATT and R.S. SMITH concur in per curiam opinion; Judges G.B. SMITH, ROSENBLATT and R.S. SMITH concur in a separate concurring opinion; Judge READ concurs in result in a separate opinion; Judge GRAFFEO dissents and votes to affirm in another opinion.

      9

      Chief Judge KAYE and Judges G.B. SMITH, CIPARICK, ROSENBLATT and R.S. SMITH concur in per curiam opinion; Judges G.B. SMITH, ROSENBLATT and R.S. SMITH concur in a separate concurring opinion; Judge GRAFFEO concurs in result in a separate opinion; Judge READ concurs in result in another opinion. [231]

      10

       

      11
      [205] OPINION OF THE COURT
      12

      Per Curiam.

      13

      These two appeals call upon the Court, once again, to differentiate depraved indifference murder from other categories of homicide. We begin with the facts.

      14

      People v Suarez. On February 22, 2000, in their Bronx apartment, defendant Santos Suarez stabbed his girlfriend, Jovanna Gonzalez, three times — once in the throat, once in the chest and once in the abdomen. Suarez fled without summoning assistance, and Gonzalez eventually bled to death.

      15

      When Suarez was arrested six days later in Rhode Island, he told police that he had slapped Gonzalez in the face during an argument, and that she had then lunged at him with a knife, scratching him in the chest. Suarez wrested the knife away and, "outraged" that Gonzalez had called for her son, lunged back at her. According to Suarez's account, when he pulled back, he saw that Gonzalez was bleeding from the neck. He claimed, however, that he could not remember what happened next. Suarez was indicted for intentional murder, depraved indifference murder, intentional manslaughter and criminal possession of a weapon in the fourth degree. At his trial, he testified that he never intended to kill Gonzalez. Charged on the defense of justification and the affirmative defense of extreme emotional disturbance, the jury acquitted Suarez of intentional murder but convicted him of depraved indifference murder. The Appellate Division affirmed defendant's conviction, holding that the evidence was legally sufficient to establish guilt of depraved indifference murder.

      16

      People v McPherson. On February 12, 2000, defendant Trisha McPherson went to the Brooklyn home of Kirk Wright, her former boyfriend and the father of her child. According to McPherson, [206] after she and Wright argued over child support, Wright pushed her. When Wright then raised his hand as if to hit her, McPherson unzipped her purse, pulled out a knife, opened the knife and swung it at Wright, stabbing him once in the chest. When she saw that Wright was bleeding, McPherson immediately called 911 and requested an ambulance. Before the ambulance arrived, McPherson left the scene. Wright was transported to a hospital, where he bled to death from the stab wound. At her nonjury trial for depraved indifference murder, first-degree manslaughter and fourth-degree weapon possession, McPherson testified that she had been a long-suffering victim of domestic violence at the hands of Wright, and that she was acting in self-defense when she killed him. The court, however, rejected her justification defense and found her guilty of depraved indifference murder. Again the Appellate Division affirmed defendant's conviction, holding that the evidence was legally sufficient to establish guilt of depraved indifference murder.

      17

      In each case — McPherson by a unanimous court, Suarez by a six-Judge majority — we conclude that there was no depraved indifference murder, and therefore reverse both convictions.

      18

       

      19
      The Statutory Categories of Homicide
      20

      With the adoption of the revised Penal Law in 1965, the Legislature codified five basic categories of homicide, which have remained essentially unchanged since that time: intentional murder in the second degree (Penal Law § 125.25 [1]),[1] depraved indifference murder in the second degree (Penal Law § 125.25 [2]), intentional manslaughter in the first degree (Penal Law § 125.20 [1]), reckless manslaughter in the second degree (Penal Law § 125.15 [1]) and criminally negligent homicide (Penal Law § 125.10). Although the culpable acts in each case culminate in the same tragic result — the death of another — these crimes, each necessarily meant to proscribe different conduct, are distinguished by the level of blameworthiness attributable to the actor who commits them. Intentional murder and depraved indifference murder are equivalent in that both are classified at the highest grade and carry the same penalty; other categories of homicide, lesser in grade, are punished less severely. In so classifying the range of unlawful killings [207] condemned by the criminal law, the Legislature has enacted a statutory system in which each category of homicide is defined uniquely and distinctly from every other, thus ensuring that a killer's punishment is commensurate with the degree of criminal culpability established by the Penal Law.

      21

      What precisely distinguishes depraved indifference murder from other homicides has of late generated significant discussion,[2] as the number of indictments for depraved indifference murder — often charged in conjunction with intentional murder — has increased dramatically. Whether because jurors conclude that anyone who would intentionally take a life is depraved, or because they mistakenly believe that depraved indifference murder is a lesser offense than intentional murder and are reluctant to convict of the "most serious" charge, the availability of a depraved indifference murder count has led juries to convict of that charge even though the evidence did not support it (see e.g. People v Hafeez, 100 NY2d 253 [2003]; People v Gonzalez, 1 NY3d 464 [2004]; People v Payne, 3 NY3d 266 [2004]; see also Policano v Herbert, 430 F3d 82 [2d Cir 2005]).

      22

      The proliferation of the use of depraved indifference murder as a fallback theory under which to charge intentional killers reflects a fundamental misunderstanding of the depraved indifference murder statute. "[D]epraved indifference murder may not be properly charged in the overwhelming majority of homicides that are prosecuted in New York" (Payne, 3 NY3d at 270). Rather, because the statute requires "circumstances evincing a depraved indifference to human life" (Penal Law § 125.25 [2]), depraved indifference murder properly applies only to a small, and finite, category of cases where the conduct is at least as morally reprehensible as intentional murder. The cases now before us, two additional examples of the misapplication of the depraved indifference murder statute, compel us — for now and for the future — to revisit what is unique and distinctive about [208] that crime as defined by the Legislature. The purpose here is not to take anything away from juries (see concurring/dissenting op at 227) — a valued and essential element of our justice system — but rather to provide the guidance that will enable prosecutors, juries, trial courts and reviewing courts to function without risk of reversal.

      23

       

      24
      Distinction from Intentional Murder
      25

      According to Penal Law § 125.25 (2), a person commits depraved indifference murder when "[u]nder circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person."

      26

      That taking the life of another can itself, in a sense, be considered a "depraved" act does not, however, turn every killing into depraved indifference murder as proscribed by the Penal Law. We thus begin by once again underscoring that the "use of a weapon can never result in depraved indifference murder when . . . there is a manifest intent to kill" (Payne, 3 NY3d at 271 [2004] [point-blank shooting insufficient to establish depraved indifference murder]). That is so because "[i]ndifference to the victim's life . . . contrasts with the intent to take it" (id. at 270). The People concede this proposition, but seek to distinguish Suarez from Payne, and from Gonzalez (1 NY3d 464 [2004] [10 shots fired at close range]), because in those cases the defendant used a gun, whereas here he used a knife. Thus, despite Payne's plain statement that "a one-on-one shooting or knifing (or similar killing) can almost never qualify as depraved indifference murder" (3 NY3d at 272 [emphasis added]), the People maintain that a jury could reasonably have concluded that Suarez's infliction of stab wounds to the throat, chest and abdomen of his victim reflected not an intent to kill but merely an intent to seriously injure her.

      27

      If the prosecution meant by this nothing more than that the evidence would have supported defendant's conviction for intentional murder — despite the jury's acquittal of that charge — as well as his conviction for intentional manslaughter in the first degree, we would agree. However, the People contend further that the evidence here also established depraved indifference murder, on the theory that Suarez's actions in stabbing the victim created a grave risk of her death — a risk that he consciously disregarded when he failed to seek medical assistance for the injuries he intentionally inflicted and instead left her there to die.

      28

      [209] "That is not the law. If it were, every homicide, particularly intentional ones, would be converted into depraved indifference murder" (Payne, 3 NY3d at 270; see also People v Hafeez, 100 NY2d 253, 259 [2003] [where defendant's conscious objective was to "intentionally injur(e)" the victim, there was "no valid line of reasoning that could support a jury's conclusion that defendant possessed the mental culpability required for depraved indifference murder"]).

      29

      Indeed, the flaw in the People's argument is perhaps best demonstrated by comparing Suarez with McPherson. In Suarez, the People maintain that depraved indifference is established by the defendant's intentional infliction of a mortal wound, followed by his flight from the scene of the killing. Because the defendant left the bleeding victim still alive without "finishing her off," we are told, he must not have intended her death (which in turn exempts the case from the "manifest intent to kill" rule of Payne). But since he did nothing to save her, his actions, we are further told, reflected a depraved indifference to her life.[3] In McPherson, by contrast, we are told that the defendant's conduct in calling for an ambulance after discovering that her victim had been wounded in itself reflected depraved indifference. For, the argument goes, her very actions in summoning assistance show that she did not intend for the victim to die. That being so, her crime (the People assert) must have been one of indifference, not of intentionality; and since the risk of death created by a chest wound is a grave one, the depraved indifference murder statute is satisfied.

      30

      When the People can make, and 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.

      31

      [210] The People's argument is flawed on two grounds. First, a killing (whether intentional or unintentional) is not transformed into depraved indifference murder simply because the killer does not summon aid for the victim. Otherwise, homicides would be routinely and improperly converted into depraved indifference murders whenever — as is often the case — the killer leaves the scene. Even more obviously, a killing does not become a depraved indifference murder merely because the killer summons aid and thus reveals an intent that the victim not die. Surely, a killer does not commit depraved indifference murder just because he or she wants the victim to live. Second, and irrespective of what the actor does or does not do after inflicting the fatal injury, depraved indifference murder is not made out unless the core statutory requirement of depraved indifference is established.

      32

      "Depraved indifference murder does not mean an extremely, even heinously, intentional killing. . . .

      "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. Nor can the wanton disregard for human life inherent in every intentional homicide convert such a killing"

      33

      into depraved indifference murder (Gonzalez, 1 NY3d at 468).

      34

       

      35
      Distinction from Intentional Manslaughter
      36

      Historically, depraved indifference murder had no application at all to one-on-one killings (see generally Bernard E. Gegan, A Case of Depraved Mind Murder, 49 St John's L Rev 417 [1974]). Accordingly, in Darry v People (10 NY 120 [1854]), this Court held that a conviction for "depraved mind"[4] murder required conduct that endangered many people indiscriminately, reflecting cases in which the defendant did not wish to kill or injure any particular individual, but had no care for whether the life of any particular person was lost or not.

      37

      Since the enactment of the revised Penal Law, however, we have recognized that in rare circumstances, depraved indifference murder can also be found in certain unintentional killings involving only a single individual. These limited cases are those [211] in which — although the intent to kill is absent — the defendant's utter depravity in causing the victim's death warrants punishment in excess of that available for manslaughter. Such cases will arise only when the acts of the defendant are "marked by uncommon brutality — coupled not with an intent to kill . . . but with depraved indifference to the victim's plight" (Payne, 3 NY3d at 271). To constitute depraved indifference, the defendant's

      38

      "conduct must be `"so wanton, so deficient in a moral sense of concern, so devoid of regard of the life or lives of others, and so blameworthy as to warrant the same criminal liability as that which the law imposes upon a person who intentionally causes the death of another"'" (People v Russell, 91 NY2d 280, 287-288 [1998], quoting People v Fenner, 61 NY2d 971, 973 [1984]).

      39

      The vast majority of killings simply do not meet this standard. They are suitably punished by statutes defining intentional murder or manslaughter in the first or second degree or criminally negligent homicide.

      40

      Depraved indifference murder is not a lesser degree of intentional murder.[5] Moreover, someone who intends to cause serious physical injury does not commit depraved indifference murder because the intended victim dies. By definition, "[s]erious physical injury" includes injury "which creates a substantial risk of death, or which causes death" (Penal Law § 10.00 [10]). Thus, one who acts with the conscious intent to cause serious injury, and who succeeds in doing so, is guilty only of manslaughter in the first degree. Otherwise, every intentional manslaughter would also establish depraved indifference murder — a result plainly at odds with the discrete classifications set forth in the statute. Since a defendant who intends to injure or kill a particular person cannot generally be said to be "indifferent" — depravedly or otherwise — to the fate of that person, we underscore what we said in Payne: "a one-on-one shooting or [212] knifing (or similar killing) can almost never qualify as depraved indifference murder" (3 NY3d at 272).[6]

      41

      A defendant may be convicted of depraved indifference murder when but a single person is endangered in only a few rare circumstances. Two fact patterns have recurred over the past four decades of experience under the revised Penal Law. First, when the defendant intends neither to seriously injure, nor to kill, but nevertheless abandons a helpless and vulnerable victim in circumstances where the victim is highly likely to die, the defendant's utter callousness to the victim's mortal plight — arising from a situation created by the defendant — properly establishes depraved indifference murder. Thus, in People v Kibbe (35 NY2d 407 [1974]), the defendants were properly convicted of depraved indifference murder after they robbed an intoxicated victim and forced him out of a car on the side of a dark, remote, snowy road, partially dressed and without shoes in subfreezing temperatures, where he was struck by a passing truck and killed. Similarly, in People v Mills (1 NY3d 269 [2003]), the defendant, without intent to harm or kill his victim, pushed a young boy into the water, watched him submerge without resurfacing (either because the boy had accidentally struck his head or because of an epileptic seizure), falsely informed his friends in response to their cries to help the victim that he was in fact swimming away, and abandoned the drowning boy to die.

      42

      Second, although we have reversed depraved indifference murder convictions in most cases involving isolated attacks, we have held that the crime is nevertheless established when a defendant — acting with a conscious objective not to kill but to harm — engages in torture or a brutal, prolonged and ultimately fatal course of conduct against a particularly vulnerable victim. When a defendant's actions serve to intensify or prolong a victim's suffering, they bespeak a level of cruelty that establishes [213] the depravity mandated by statute. Thus, in People v Poplis (30 NY2d 85 [1972]), the defendant committed depraved indifference murder when, albeit without any intent to kill, he caused the death of a 3½-year-old infant as a result of continually beating the child over a period of five days (see also People v Best, 85 NY2d 826 [1995], affg 202 AD2d 1015 [4th Dept 1994] [defendant's repeated severe beatings of her nine-year-old son caused large open wounds resulting in blood poisoning and ultimately death by asphyxiation; depraved indifference murder established since defendant continued beatings though aware of child's condition]).

      43

      Both of these categories of cases reflect wanton cruelty, brutality or callousness directed against a particularly vulnerable victim, combined with utter indifference to the life or safety of the helpless target of the perpetrator's inexcusable acts. We have also upheld convictions for depraved indifference murder in a few other extraordinary cases involving conduct that endangered only one person, where the evidence showed not just recklessness, but depraved indifference to human life (see e.g. People v Roe, 74 NY2d 20 [1989] [defendant fired at point-blank range without knowing whether the bullet was a "live" or "dummy" round]). Where comparable facts are not shown, however, a jury is foreclosed, as a matter of law, from considering a depraved indifference murder charge whenever death is the result of a one-on-one confrontation.[7]

      44

       

      45
      Distinction from Reckless Manslaughter
      46

      Reckless homicide cannot be elevated into depraved indifference murder merely because the actions of the defendant created a risk of death, however grave or substantial that risk may have been. Otherwise, manslaughter in the second degree would routinely and automatically become depraved indifference murder inasmuch as the victim (who was, after all, killed) was necessarily exposed to a grave or substantial risk of death. The critical [214] statutory language that separates second-degree manslaughter from depraved indifference murder is the defendant's underlying depraved indifference. "[C]ircumstances evincing a depraved indifference to human life" are not established by recklessness coupled only with actions that carry even an inevitable risk of death.

      47

      We therefore make clear that depraved indifference is best understood as an utter disregard for the value of human life — a willingness to act not because one intends harm, but because one simply doesn't care whether grievous harm results or not. Reflecting wickedness, evil or inhumanity, as manifested by brutal, heinous and despicable acts, depraved indifference is embodied in conduct that is "so wanton, so deficient in a moral sense of concern, so devoid of regard of the life or lives of others, and so blameworthy" as to render the actor as culpable as one whose conscious objective is to kill (Russell, 91 NY2d at 287 [internal quotation marks omitted]).[8] Quintessential examples are firing into a crowd (see e.g. People v Jernatowski, 238 NY 188 [1924]); driving an automobile along a crowded sidewalk at high speed (see People v Gomez, 65 NY2d 9 [1985]); opening the lion's cage at the zoo; placing a time bomb in a public place; poisoning a well from which people are accustomed to draw water; opening a drawbridge as a train is about to pass over it and dropping stones from an overpass onto a busy highway.

      48

      Oftentimes it will not be easy to determine whether a defendant's conscious objective was to kill or merely to injure a victim. But those are the hard choices to be weighed by the trier of fact. Depraved indifference murder was never meant as a fallback crime enabling courts and juries to avoid making these difficult decisions. 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 (see People v Register, 60 NY2d 270, 276 [1983] [depraved indifference murder statute "requires in [215] addition not only that the conduct which results in death present a grave risk of death but that it also occur `(u)nder circumstances evincing a depraved indifference to human life'"]).

      49

      We depart slightly from the Register formulation, however, in that we make clear that the additional requirement of depraved indifference has meaning independent of the gravity of the risk. As the present cases illustrate, to focus, as the dissent does, on only the degree of risk presented by a defendant's reckless actions gives insufficient guidance to prosecutors, courts and juries struggling to distinguish between these very different crimes. For with the critical inquiry thus cast, it becomes difficult for trial and appellate courts to determine as a matter of law whether given conduct has established a very substantial or merely substantial risk of death, particularly because this determination must, by definition, always be made with the hindsight that the endangered victim did in fact die. That being so, it is hard for a court exercising meaningful review ever to deny that the jury could reasonably have concluded that the defendant's conduct must have created a very substantial (i.e., grave) risk of death, since it actually succeeded in causing death.

      50

      Although the dissent proclaims its faith in the ability of jurors to make the fine distinction between "a grave, transcendent risk of death justifying a conviction of second-degree murder or a substantial risk of death warranting a manslaughter conviction" (dissenting/concurring op at 227), it also concludes that there was no rational view of the evidence to support the conclusion that McPherson demonstrated a depraved indifference to the victim's life. But of course, the trial judge found otherwise, and was affirmed by the Appellate Division.

      51

      When depraved indifference murder is properly understood, "twin-count" indictments — charging both intentional homicide and depraved indifference murder — should be rare. Twin-count submissions to a jury, even rarer. For by the time the proof has been presented, it should be obvious in most cases whether or not the evidence establishes "an intentional [killing] or no other" (People v Wall, 29 NY2d 863, 864 [1971]). Thus, where twin-count indictments are lodged, trial courts should presume "that the defendant's conduct falls within only one category of murder and, unless compelling evidence is presented to the contrary, dismiss the count that is least appropriate to the facts" (Abramovsky and Edelstein, 55 Syracuse L Rev at 491).

      52

      In sum, whether a small, finite or rare category, depraved indifference murder should not be routinely charged to a jury. [216] Focus on the three statutory factors that distinguish depraved indifference murder — "circumstances evincing a depraved indifference to human life," recklessness and "a grave risk of death to another person" — should again make clear that the statute properly applies only to the unusual case.

      53

       

      54
      Application of the Law to the Facts
      55

      In Suarez, defendant's acts in stabbing his victim in the throat, chest and abdomen did not, as a matter of law, constitute depraved indifference murder. Whether he intended to kill her or merely to cause her serious injury — and either of these findings, supported by sufficient evidence, might have been properly made by the jury — defendant's actions in no way reflected a depraved indifference to her fate.[9] In McPherson, defendant's conduct may have reflected recklessness but did not fall within the small, and finite, category of cases evidencing utter depravity, uncommon brutality and inhuman cruelty required for depraved indifference murder. We reject defendant McPherson's further contention that she was denied the effective assistance of counsel at her trial.

      56

       

      57
      Remittitur
      58

      In their briefs to this Court, the parties focused their arguments on the merits, and not on the question of remedy in the event of a reversal. Inasmuch as the Appellate Division, in affirming in each case, had no occasion to address the significant legal arguments bearing on the appropriate remedy, we remit to the Appellate Division for full briefing and consideration and for that Court to exercise its corrective action powers under CPL 470.20.

      59

      [217] Accordingly, in each case, the order of the Appellate Division affirming the judgment of conviction and sentence should be reversed and the case remitted to that Court for further proceedings in accordance with this opinion. Additionally, in McPherson, the order of the Appellate Division affirming the denial of defendant's CPL 440.10 motion should be affirmed.

      60

      G.B. SMITH, ROSENBLATT and R.S. SMITH, JJ. (concurring).

      61

      We are full participants in the Court's per curiam decision, but write separately to add some views of our own.

      62

      The Court's earlier decisions in People v Register (60 NY2d 270 [1983]) and in People v Sanchez (98 NY2d 373 [2002]), which was based in significant part on Register, gave too expansive a definition to depraved indifference murder. The Court has properly limited the force of those decisions in People v Hafeez (100 NY2d 253 [2003]), People v Gonzalez (1 NY3d 464 [2004]) and People v Payne (3 NY3d 266 [2004]), and has limited them even further today. We would take a step beyond the per curiam opinion and say what the Court stops short of saying: that Register and Sanchez should be explicitly overruled.

      63

      Notwithstanding this difference, we welcome the Court's return to a more restrictive, and we believe more sound, interpretation of the depraved indifference murder statute. But there is, as all members of this Court are painfully aware, a price to be paid for this needed revision in the Court's approach. At least in Gonzalez, Payne and Suarez, defendants' convictions have been reversed despite — indeed, in part because of — strong evidence that they intended to kill their victims. But juries acquitted Gonzalez, Payne and Suarez of intentional murder, and we think the Court has rightly concluded that a correct interpretation of the depraved indifference murder statute does not permit their convictions of that crime to stand.

      64

      In overturning convictions in such cases, the Court, in our view, performs an unpleasant but necessary duty, and by doing so will make future homicide prosecutions more sustainable, increasing 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. 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. Defendants who committed vicious crimes but who may have been charged and convicted under the wrong section of the statute are not attractive [218] candidates for collateral relief after their convictions have become final.[1]

      65

      A defendant who commits intentional murder should be convicted and punished for that crime, not for a crime that he or she did not commit and that a jury may mistakenly believe is less serious. Where intentional murder is not made out, the lesser degrees of homicide, including first and second degree manslaughter, can fully serve the function they served for decades before the relatively recent, seismic expansion in depraved indifference murder prosecutions.[2] Continuing to countenance the routine use of depraved indifference murder charges, as the dissent would have us do, will ultimately cause more trouble than the course the Court has taken today.

      66

      Further, and contrary to the dissent, the Court does not hold that a person who stabs another with a knife may never be guilty of depraved indifference murder. It is better to say "almost never," as the Court does. Though we have held that a point-blank shooting may almost never qualify as depraved indifference murder, we have recognized that a variation on Russian roulette (a point-blank shooting) may be an exception (see People v Roe, 74 NY2d 20 [1989]). Similarly, if one person kills another by throwing a knife to see how close it can get to the victim's head, a depraved indifference murder charge may be justified. But law school-type hypotheticals are not the stuff of the day-to-day criminal courts; and the per curiam 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.

      67

      We appreciate our dissenting colleague's desire to affirm in Suarez and reverse in McPherson. But, as the per curiam opinion demonstrates, to reach that result while applying Register and Sanchez requires overlooking the fact that both [219] defendants created at least a grave risk of death by fatally stabbing their victims in the chest. It may well be that justice would call for convicting Suarez of murder and McPherson of manslaughter, but the degree of risk created is not a sufficient basis for distinguishing between cases like these. The distinction can be properly made only by requiring that the prosecution, to obtain a murder conviction, must prove intent to kill or, in the rare cases where it is present, depraved indifference to human life. That is what the Legislature plainly intended, and we welcome the Court's decision today to adhere to that original intention.

      68

      READ, J. (concurring).

      69

      On constraint of our decision in People v Payne (3 NY3d 266 [2004]), I concur with the result in People v Suarez. On constraint of our decisions in People v Hafeez (100 NY2d 253 [2003]) and Payne, I concur with the result in People v McPherson. For all the reasons expressed by Judge Graffeo, I find the majority's rationale for deviating from our longstanding precedent and reinterpreting Penal Law article 125 to be unconvincing. As Judge Graffeo further points out, our jurisprudence in this area now raises a significant public policy issue that only the Legislature can resolve.

      70

      GRAFFEO, J. (concurring in McPherson and dissenting in Suarez).

      71

      The majority concludes that a person who stabs someone with a knife cannot act with "a depraved indifference to human life" (Penal Law § 125.25 [2]). To reach this conclusion and limit the applicability of the depraved indifference murder statute, the majority employs reasoning that is inconsistent with the language of the statute as well as the carefully drawn legislative distinctions between intentional murder, depraved indifference murder and manslaughter. Its rationale deviates from our precedent in People v Sanchez (98 NY2d 373 [2002]), People v Register (60 NY2d 270 [1983]) and other cases decided by this Court. Today's decision also fails to recognize and respect the ability of our jury system to reliably differentiate between different types of homicide. For these reasons, I respectfully disagree with the majority's interpretation of the depraved indifference murder statute.

      72

       

      73
      Depraved Indifference Murder
      74

      The Legislature codified distinct categories of homicide in the Penal Law that became effective in 1967. Murder in the second degree is committed by intentionally causing the death of another [220] (see Penal Law § 125.25 [1]). An intentional killing may also be classified as first-degree murder if certain aggravating circumstances concerning the crime, the victim or the defendant are present (see Penal Law § 125.27 [1] [a]). A murder is intentional when the accused acts with the "conscious objective" to kill (Penal Law § 15.05 [1]). A lesser offense, manslaughter in the first degree, is committed when a person who intended to cause serious physical injury, causes death (see Penal Law § 125.20 [1]).

      75

      Recognizing that not all criminal conduct is intentional, the Legislature created several categories of nonintentional homicide, reflecting differing degrees of criminal culpability. A distinct type of murder, referred to as "depraved mind murder," had previously been codified in New York, but the earlier statute had been interpreted to apply only to deaths that occurred when a defendant's conduct had endangered more than one person and was not directed at harming any particular person (see Darry v People, 10 NY 120, 147 [1854]). In order to expand the reach of the offense, the Legislature redesignated this category of homicide as "depraved indifference murder," classified it as second-degree murder and provided that the crime is committed when a person, "[u]nder circumstances evincing a depraved indifference to human life, [] recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person" (Penal Law § 125.25 [2]). To kill recklessly, as opposed to intentionally, one must be "aware of and consciously disregard[]" a risk that conduct will result in death (Penal Law § 15.05 [3]). Both of these forms of second-degree murder — intentional and depraved indifference — carry the same penalties and are class A-I felonies. This underscores the Legislature's desire to enact a category of homicide that, although not the result of a conscious intent to kill, is the result of circumstances, coupled with a grave disregard for life, comparable in severity and blameworthiness to intentional murder.[1]

      76

      Another category of homicide, manslaughter in the second degree, a crime of lesser grade and severity, is also premised on reckless conduct (see Penal Law § 125.15 [1]). There is, however, a critical difference between second-degree manslaughter and depraved indifference murder. Depraved indifference murder requires that the actor create a "grave" risk of death (Penal [221] Law § 125.25 [2]), whereas the manslaughter statute employs a lesser, "substantial" risk of death standard (Penal Law § 15.05 [3]). When a jury concludes that the lesser degree of risk was created and convicts a defendant of manslaughter, a class C felony, the sentencing options are far less onerous than the penalties authorized for a depraved indifference murder conviction (see generally Penal Law art 70).

      77

      Thus, in delineating between these types of homicide, the Legislature clearly indicated that the important factors that distinguish these crimes are whether a person acts intentionally with respect to a particular result (for intentional murder and first-degree manslaughter) or recklessly with regard to whether death will result (for depraved indifference and second-degree manslaughter), and if the person was reckless, whether that conduct created a grave risk of death (for depraved indifference) as opposed to only a substantial risk of death (for manslaughter). The determination of the accused's state of mind and the degree of risk created by his or her conduct has traditionally and almost exclusively been reserved to a jury of the accused's peers.

      78

      This Court on a number of occasions has discussed the meaning of the depraved indifference requirement in the second-degree murder statute. In People v Register, we explained that depraved indifference "refers to neither the mens rea nor the actus reus" of the crime (60 NY2d at 276). Rather, it is "a definition of the factual setting in which the risk creating conduct must occur" (id.). This is consistent with the carefully chosen statutory condition that depraved indifference second-degree murder is available only in "circumstances evincing a depraved indifference to human life" (Penal Law § 125.25 [2] [emphasis added]). The Legislature inserted the word "circumstances" for a reason. As we emphasized in People v Sanchez, the "requirement of circumstances evincing a depraved indifference to human life . . . focuses not on the subjective intent of the defendant, `but rather upon an objective assessment of the degree of risk presented by [the] defendant's reckless conduct'" (98 NY2d at 379-380, quoting Register, 60 NY2d at 277). And it is the "exceptionally high, unjustified risk of death [that] constitute[s] the primary means by which the Legislature differentiated between the reckless state of mind sufficient to establish the mental culpability of manslaughter and the extreme recklessness of [depraved indifference] murder" (Sanchez, 98 NY2d at 380).

      79

      [222] From the viewpoint of statutory analysis, the majority's restrictive application of depraved indifference murder is inconsistent with the specific language of Penal Law § 125.25 (2) and our long established precedent construing that statute. According to the majority, the depraved indifference provision allows an individual to be prosecuted for second-degree murder if that person recklessly engages in conduct that creates a grave risk of death to another person and thereby causes the death of another person in the following situations: (1) where only one individual is put at risk of death and the accused "abandons [the] helpless and vulnerable victim in circumstances where the victim is highly likely to die" (majority op at 212) or "engages in torture or a brutal, prolonged and ultimately fatal course of conduct against a particularly vulnerable victim" (majority op at 212) and (2) where more than one person is put at risk of death, regardless of the "helpless[ness]" and "vulnerab[ility]" of the victim (majority op at 212), or whether the defendant "engages in torture or a brutal, prolonged and ultimately fatal course of conduct" (majority op at 212).

      80

      This limited construction of the statute is unjustified. The language of Penal Law § 125.25 (2) does not remotely suggest that the extent of helplessness and vulnerability of the victim, or the length and nature of an attack, are prerequisites to a determination of depraved indifference. And the statute cannot plausibly be read to suggest that the Legislature intended the phrase "depraved indifference" to carry one definition in the context of a one-on-one altercation, yet mean something completely different when more than one person is endangered by the conduct of another. Furthermore, the legislative amendments to the second-degree murder statute in 1967 were meant to broaden the application of depraved indifference murder, not restrict it to cases like shooting into a crowd, opening a lion's cage or detonating a bomb in a public place, examples cited by the majority.

      81

      Aside from the problems inherent in the majority's inability to reconcile its interpretation with the plain language of the depraved indifference murder statute, today's decision signals a fundamental shift in our homicide jurisprudence. Although it purports to maintain the objective circumstances rule (see majority op at 214-215), the majority acknowledges that it is departing somewhat from the standard articulated in Register (see majority op at 215). Rather than focusing on the grave risk of death, the majority speaks in terms of the "wickedness, evil or [223] inhumanity" of the killer (majority op at 214). A majority of our Court clearly rejected this type of heightened mens rea just three years ago in Sanchez.

      82

      "Nowhere in the[] modern formulations of depraved mind or depraved indifference murder is there a requirement that, in addition to the extremely reckless nature of the homicidal conduct, there must also be proof in some other sense of an `uncommonly evil and morally perverse frame of mind'" (Sanchez, 98 NY2d at 383).

      83

      We also noted that to adopt the position now taken by the majority — to add "further mens rea elements or substantive requirements of subjectively defined characteristics of the defendant's acts" (id. at 384) — "will only confuse rather than clarify" the distinction between intentional and depraved indifference murder (id.). And in the two cases that followed Sanchez, People v Hafeez (100 NY2d 253 [2003]) and People v Gonzalez (1 NY3d 464 [2004]), we continued to apply the objective circumstances rule to determine whether there was legally sufficient evidence of depraved indifference murder, and concluded that the planned, premeditated nature of those two killings was consistent only with an intent to kill, not a reckless state of mind.

      84

      In this Court's most recent depraved indifference decision, People v Payne (3 NY3d 266 [2004]), a majority held that the point-blank shooting of a person in the chest with a shotgun should not be classified as depraved indifference murder because "a one-on-one shooting or knifing (or similar killing) can almost never qualify as depraved indifference murder" (id. at 272), regardless of other objective circumstances that may be present in a particular case, since murders of this nature demonstrate an inherent "manifest intent to kill" that does not constitute an indifference to human life (id. at 271). In my view, both Payne and the rule enunciated by the majority here conflict with our statement in Sanchez that "purposeful homicide itself is the ultimate manifestation of indifference to the value of human life" (98 NY2d at 384). Put another way, we recognized in Sanchez that there can be an act that creates "such a high risk of death that it could also lead to the conclusion that it was intentional[, which] supports rather than detracts from characterizing it as evincing depraved indifference to human [224] life" (id.).[2] In fact, in Sanchez, where the defendant unjustifiably shot another person at close range in the chest, we affirmed the depraved indifference murder conviction precisely because "the likelihood of causing death . . . was so obviously severe that it evinced a depraved indifference to human life" (id.).[3]

      85

      The majority attempts to reconcile its decision with the principles articulated in Sanchez by stating that the depraved indifference murder conviction in that case was upheld only "because `others were endangered'" (majority op at 213 n 7, quoting People v Payne, 3 NY3d at 272). But the Sanchez opinion neither relied on danger to multiple individuals as a decisive factor supporting a finding of depraved indifference, nor suggested that such a fact was crucial to its reasoning. To perpetuate this thin distinction further confuses the state of the law in New York.

      86

      I expect that the impact of the majority's decision will not be limited to undermining the principles espoused in Register and Sanchez. For example, in People v Roe (74 NY2d 20 [1989]) we concluded that the death of the victim, who was shot during a game of "Polish roulette," was properly classified as depraved indifference murder. Roe had loaded a shotgun with a combination of live and dummy shells, aimed it at the victim and pulled the trigger not knowing which type of round had been chambered. In that one-on-one, close-range shooting, the defendant neither "abandon[ed] a helpless and vulnerable victim" (majority op at 212) nor engaged in a "prolonged and ultimately fatal course of conduct" (majority op at 212), yet we nevertheless upheld the conviction for depraved indifference murder. Although the majority indicates that Roe was properly convicted of depraved indifference murder because it was "extraordinary" (majority op at 213), the majority does not explain how or why that is so in light of the new limitations imposed on depraved indifference murder.

      87

      [225] There are other troubling ramifications of this ruling that will not be limited to the second-degree murder statute. The crimes of assault in the first degree and reckless endangerment in the first degree also require that the defendant, "[u]nder circumstances evincing a depraved indifference to human life, [] recklessly engage[] in conduct which creates a grave risk of death to another person" (Penal Law § 120.10 [3]; see Penal Law § 120.25). Presumably, the majority's new interpretation of "depraved indifference" in the context of second-degree murder will apply with equal force to these two offenses since identically worded phrases in the same chapter of laws are usually accorded the same meaning. In light of this assumption, substantial case law from this Court will have dubious precedential value, including cases where we concluded that the requirement of "depraved indifference" is satisfied when a single gunshot was fired at point-blank range into the victim's temple (see People v Tuck, 87 NY2d 828 [1995]), a loaded and cocked handgun was placed against the temple but was not fired (see People v Chrysler, 85 NY2d 413 [1995]) and the victim was beaten and had a metal object plunged into his spinal cord (see People v Lynch, 95 NY2d 243 [2000]). Despite the fact that these circumstances do not fit into either of the two categories of "one-on-one" depraved indifference that the majority identifies (the defendants neither "abandon[ed] a helpless and vulnerable victim in circumstances where the victim is highly likely to die" [majority op at 212] nor "engage[d] in torture or a brutal, prolonged and ultimately fatal course of conduct against a particularly vulnerable victim" [majority op at 212]) before today it was generally accepted that juries could consider the circumstances surrounding such conduct in evaluating the requirements of depraved indifference.[4]

      88

      The majority's primary justification for altering our approach to depraved indifference murder centers on a concern that prosecutors and juries have been conflating this crime with intentional murder in the second degree. Contrary to the majority's belief, recognition of the long-standing rule of law expressed in Sanchez and Register does not convert "`every homicide, particularly intentional ones . . . into depraved indifference [226] murder'" (majority op at 209, quoting People v Payne, 3 NY3d at 270). There is a readily understandable distinction between intentional and depraved indifference murders — the killer's state of mind. As we have recognized, a person can act intentionally by having the conscious objective to cause death, or recklessly by disregarding a known risk of death, but cannot act with both mental states simultaneously with regard to the same result (see People v Trappier, 87 NY2d 55, 58-59 [1995]; People v Gallagher, 69 NY2d 525, 529 [1987]). Thus, simultaneous convictions for both intentional murder and depraved indifference murder cannot stand. But it does not follow that both counts may not be submitted to a jury in the alternative, with the jury to decide which offense, if any, occurred. Since direct evidence of the inner workings of a person's mind is often unavailable, the determination of the actual mens rea of a killer has traditionally remained in most situations a question of fact for the jury based on all the evidence and the entire circumstances (see People v Smith, 79 NY2d 309, 315 [1992]). The majority effectively takes that decision away from the jury, requiring a judge to preemptively choose between these alternative states of mind, even where it is the defendant who raises a factual dispute concerning mens rea by asserting that he or she did not intend to kill.

      89

      Intentional and depraved indifference murder are also distinguishable because once the jury determines that a homicide was committed purposefully, "the depravity of the circumstances under which the intentional homicide is committed is simply irrelevant" (People v Gonzalez, 1 NY3d at 468). This is so because an intentional killing is, by its very nature, "`"wanton . . . deficient in [] moral sense . . . [and] devoid of regard of the life or lives of others"'" (People v Russell, 91 NY2d 280, 287 [1998], quoting People v Fenner, 61 NY2d 971, 973 [1984]). It is only when a jury determines that a defendant did not consciously intend to cause death, but acted recklessly, that the jury must further decide whether the objective circumstances of the crime evince a depraved indifference to human life that "equals in blameworthiness intentional conduct purposefully designed to cause death" (CJI 2d [NY] Penal Law § 125.25 [2] ["Depraved Indifference Murder and Reckless Manslaughter Explained"] [revised Aug. 2, 2004]). The purpose of this inquiry is not to differentiate between intentional and depraved indifference murder but to decide whether the defendant created such a grave, "exceptionally high" risk of death that murder, as opposed to [227] manslaughter, has been committed (People v Sanchez, 98 NY2d at 380; see People v Register, 60 NY2d at 279).

      90

      Certainly depraved indifference murder should not be used as a "fallback crime" by prosecutors or juries (majority op at 214). As the distinctions between the intentional murder and depraved indifference murder provisions clearly indicate, this was not the intent of the Legislature and, therefore, is not what courts should charge juries as the law of this State. Rather, depraved indifference murder is a viable, morally equivalent crime, equal in both classification and severity of punishment to intentional murder, yet sufficiently distinguishable both legally and factually. It should be charged and considered by the jury when the facts, as viewed in the light most favorable to the People, could permit a rational jury to conclude that a defendant acted recklessly with a depraved indifference to life.

      91

      To presume that conflation is widespread, 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. 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). The majority recognizes that "[o]ftentimes it will not be easy to determine whether a defendant's conscious objective was to kill or merely to injure" but, nonetheless, "those are the hard choices to be weighed by the trier of fact" (majority op at 214). The majority then inexplicably fails to appreciate that the same is true with respect to distinguishing between an intentional and reckless state of mind — a determination that, although sometimes difficult, nevertheless traditionally has been and should remain the responsibility of a jury (see People v Sanchez, 98 NY2d at 384-385).

      92

      Ultimately, the majority's reasoning will not likely clarify this issue for courts and prosecutors, who continue to struggle to determine what this Court's view on depraved indifference will be on the facts presented in a particular homicide case. Although the majority has left open the possibility that additional categories of one-on-one homicides, other than the two explicitly identified in today's decision, may qualify for treatment as [228] depraved indifference murder if the circumstances are "extraordinary" (a term it does not define), trial courts and prosecutors are well advised to tread carefully when dealing with depraved indifference murder in the future, lest further injustices occur.

      93

      One thing is certain. We no longer have a category of reckless homicide that is comparable in grade and penalty to intentional murder, except in the rare situations authorized by the majority. There is an urgent need for the Legislature to reexamine article 125 of the Penal Law in the aftermath of today's decision. Undoubtedly, there will be future killings that juries may decide were not committed with an intent to kill, but were the result of reckless acts committed with a grave disregard for life. The policy issue is whether this type of criminal conduct should expose these offenders to criminal penalties more severe than those available for a class C felony conviction of manslaughter in the second degree. The Legislature should explore what societal objectives need to be preserved in article 125 and restructure New York's homicide statutes to meet those objectives.

      94

       

      95
      The Cases Before Us
      96

      Based on the facts presented in these two cases, and applying our established principles of depraved indifference murder as articulated in Register and Sanchez, I conclude that there was legally sufficient evidence to support the second-degree murder conviction of defendant Santos Suarez. Viewed in the light most favorable to the People, the jury could have rationally determined that Suarez did not consciously intend to kill the victim when he became embroiled in a dispute with her, but rather acted recklessly by disregarding the grave risk that his conduct would result in the death of the victim. Suarez testified that he did not intend to kill the victim. Surely jurors are allowed to credit this testimony. Suarez also alleged that it was his girlfriend who produced the knife during their verbal confrontation. If found to be a credible claim by the jury, this was an indication that the attack by defendant was not premeditated (cf. People v Gonzalez, 1 NY3d 464 [2004] [after seeing the victim, the defendant departed and later returned with the murder weapon]; People v Hafeez, 100 NY2d 253 [2003] [retaliatory attack was plotted in advance]). There was also ample evidence that defendant's actions created such an exceptionally high, grave risk of death that they were properly classified as depraved indifference murder rather than manslaughter. The [229] victim received three stab wounds in her torso, two of which perforated a major vein and caused half of the blood in the victim's body to pour into her chest cavity. Under these circumstances, the jury's determination that Suarez was guilty of depraved indifference murder was rational as it was supported by record evidence.

      97

      As for defendant Trisha McPherson, I concur with the majority that the evidence was insufficient to justify a depraved indifference murder conviction. Unlike in Suarez, McPherson was not charged with both depraved indifference murder and intentional murder and the People did not assert at trial that she possessed an intent to kill. The only issue was whether there were objective circumstances evincing a depraved indifference to human life. The proof, even viewed in the People's favor, was that McPherson carried the knife to the scene and during an escalating argument with the victim, inflicted a single stab wound. McPherson then immediately called 911 for help and remained with the victim until she heard sirens indicating that assistance was on the way before departing, demonstrating her efforts to minimize the possibility that the wound she inflicted would prove to be fatal.

      98

      Accordingly, in People v Suarez, I would affirm defendant's conviction; in People v McPherson, I would modify by dismissing the depraved indifference murder conviction. In light of the majority's decision to remit McPherson for consideration of the proper remedy, it is unnecessary for me to address the proper corrective action that should be taken and I therefore express no view on the propriety of remittal.

      99

      In People v Suarez: Order reversed and case remitted to the Appellate Division, First Department, for further proceedings in accordance with the opinion herein.

      100

      [230] In People v McPherson: On defendant's appeal from the order of the Appellate Division affirming the judgment of conviction and sentence as to murder in the second degree, order reversed and case remitted to the Appellate Division, Second Department, for further proceedings in accordance with the opinion herein. On defendant's appeal from the order of the Appellate Division affirming the order of Supreme Court denying defendant's CPL 440.10 motion, order affirmed.

      101

      [1] Certain enumerated aggravating factors elevate intentional murder in the second degree to murder in the first degree (Penal Law § 125.27 [1]).

      102

      [2] See e.g. Abraham Abramovsky and Jonathan I. Edelstein, Depraved Indifference Murder Prosecutions in New York: Time for Substantive and Procedural Clarification, 55 Syracuse L Rev 455 (2005); Paul Shechtman, Outside Counsel, The Meaning of Depraved-Indifference Murder: New Legislation?, NYLJ, Apr. 4, 2005, at 4, col 4; Brian F. Allen, A Step in the Right Direction: People v. Hafeez, Stopping the Expansion of Depraved Indifference Murder in New York State, 18 St John's J Legal Comment 875 (2004); Peter Dunne, Is There Life Left in Depraved Indifference Murder?, 2 NY Crim L Newsl [No. 4] 5 [NY St Bar Assn, Fall 2004]; see also Bernard E. Gegan, More Cases of Depraved Mind Murder: The Problem of Mens Rea, 64 St John's L Rev 429 (1990).

      103

      [3] Thus, under the People's theory, a defendant who plainly intended to kill the victim, and who succeeded, may be prosecuted only for intentional murder. But an inept defendant, who commits precisely the same acts with the intent to kill, but who fails to kill the victim right away and instead flees the scene of the attempted intentional homicide, will — despite having engaged in identical conduct with an identical mental state — have committed depraved indifference murder when the victim later dies. We cannot agree with this proposition. It is the rare killer indeed who, after inflicting a mortal wound intended at a minimum to cause serious physical injury, lingers at the scene of the crime or summons aid. "The People's tautology, if accepted, would improperly convert every intentional homicide" that does not succeed in bringing about the victim's immediate death into depraved indifference murder (Gonzalez, 1 NY3d at 468).

      104

      [4] We note that the statute no longer refers to depraved "mind" murder. Continuing to describe the crime in those terms improperly detracts from the current statute's requirement of indifference.

      105

      [5] It was therefore misleading for the prosecutor in Suarez to request in summation that the jury "find [defendant] guilty of Intentional Murder, or at the very least, that he acted with such depraved indifference that he disregarded her human life" (emphasis added).

      106

      [6] Of course, a one-on-one dispute will not always reflect a manifest intent to kill or injure. Rather, we make clear only that whether the infliction of serious or fatal injury was intended or not, such a confrontation can almost never support a finding of depraved indifference. It is up to the jury to decide in a particular case whether the defendant acted intentionally, or recklessly, or negligently (or not at all). Indeed, in McPherson — a one-on-one confrontation — the evidence was certainly sufficient to support a finding of reckless manslaughter, although not of depraved indifference murder. Nor do we make any absolute pronouncement "that a person who stabs someone with a knife cannot act with `a depraved indifference to human life'" (concurring/dissenting op at 219).

      107

      [7] Moreover, the mere presence of third persons at the scene of a killing does not convert an intentional homicide directed at a particular victim into depraved indifference murder unless others are actually endangered. Thus, in Gonzalez, although the defendant, after shooting the victim, "waved the gun at the only eyewitness — the barber — warned him not to say anything and walked out the door" (1 NY3d at 466), the evidence was legally insufficient to establish depraved indifference murder despite the presence of the barber in the shop at the time of the shooting (see also People v Sanchez, 98 NY2d 373 [2002] [depraved indifference murder conviction upheld because "others were endangered" (Payne, 3 NY3d at 272)]).

      108

      [8] By contrast, in authorizing lesser punishment for the crime of manslaughter in the first degree, the Legislature specifically determined that the intentional infliction of serious injury resulting in death is not so blameworthy "as to warrant the same criminal liability as that which the law imposes upon a person who intentionally causes the death of another" (id. at 287-288 [internal quotation marks and citations omitted]).

      109

      [9] Nor could Suarez's claims that he was acting in self-defense or that he could not remember what happened when he stabbed his girlfriend support his conviction for depraved indifference murder. Depraved indifference murder entails depraved indifference, not a mere loss of memory or actions performed without conscious focus (see also Gonzalez, 1 NY3d at 469 ["In arguing that the jury might have concluded that defendant acted out of fear and anger, and therefore without intent, the People confuse recklessness with extreme emotional disturbance. A defendant who commits murder because of uncontrollable emotion may be entitled to raise an affirmative defense to murder, but the extreme emotional disturbance defense does not negate intent. The influence of an extreme emotional disturbance explains the defendant's intentional action, but does not make the action any less intentional. Indeed, when there is a finding that the defendant acted under extreme emotional disturbance, the offense is reduced from intentional murder in the second degree to intentional — not reckless — manslaughter in the first degree" (internal quotation marks and citations omitted)]).

      110

      [1] Adherence to the Register/Sanchez analysis may have adverse consequences for the stability of previous convictions. Some federal court decisions indicate that the statute as interpreted according to Register and Sanchez raises constitutional problems that should result in the release of some defendants on federal collateral review (see Jones v Keane, 2002 US Dist LEXIS 27418 [SD NY, May 22, 2002, 02 Civ 1804 (CLB)], revd on other grounds 329 F3d 290 [2d Cir 2003]; St. Helen v Senkowski, 2003 US Dist LEXIS 26642 [SD NY, Sept. 19, 2003, 02 Civ 10248 (CLB)], revd on other grounds 374 F3d 181 [2d Cir 2004]; see also Policano v Herbert, 430 F3d 82 [2d Cir 2005]). Today's decision should alleviate those concerns.

      111

      [2] This view was expressed in the dissenting opinions of G.B. Smith, Ciparick and Rosenblatt, JJ. in Sanchez (98 NY2d 373, 401-402, 416 [2002]).

      112

      [1] There are two other categories of nonintentional murder in the second degree, including felony murder (see Penal Law § 125.25 [3], [4]).

      113

      [2] We also observed that the commentary to the Model Penal Code, which influenced our depraved indifference murder statute, was consistent with this view (see Sanchez, 98 NY2d at 384; Model Penal Code and Commentaries, part II, § 210.2, Comment 4, at 21-22 [1980]).

      114

      [3] Additionally, the rule announced by the majority in this case and Payne essentially creates a mandatory legal presumption that a person intends the ordinary consequences of his or her voluntary acts, which "reliev[es] the State of the burden of proof enunciated in Winship on the critical question of [the defendant's] state of mind" (Sandstrom v Montana, 442 US 510, 521 [1979]; see In re Winship, 397 US 358 [1970]).

      115

      [4] See Model Penal Code and Commentaries, part II, § 210.2, Comment 4, at 22 (1980) ("[i]t must be left directly to the trier of fact under instructions which make it clear that recklessness that can fairly be assimilated to purpose or knowledge should be treated as murder and that less extreme recklessness should be punished as manslaughter").

    • 5.5 People v. Feingold

      1

      7 N.Y.3d 288 (2006)
      852 N.E.2d 1163
      819 N.Y.S.2d 691

      2
      THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
      v.
      LARRY FEINGOLD, Appellant.
      3

      Court of Appeals of New York.

      Argued June 7, 2006.
      Decided July 5, 2006.

      4

      [289] Rochman Platzer Fallick Sternheim Luca & Pearl, LLP, New York City (Jillian S. Harrington, Barry M. Fallick and Irwin Rochman of counsel), for appellant.

      5

      Robert M. Morgenthau, District Attorney, New York City (Patricia Curran and Michael S. Morgan of counsel), for respondent.

      6

      Judges ROSENBLATT, READ and R.S. SMITH concur with Judge G.B. SMITH; Judge CIPARICK dissents and votes to affirm in an opinion in which Chief Judge KAYE concurs; Chief Judge KAYE dissents in another opinion; Judge GRAFFEO dissents and votes to affirm in a separate opinion.

      7
      OPINION OF THE COURT
      8
      G.B. SMITH, J.
      9

      Defendant was convicted, after a nonjury trial, of reckless endangerment in the first degree in violation of Penal Law § 120.25. Because the verdict, as enunciated by the trial judge and affirmed by the Appellate Division, does not conform to this Court's precedents, we modify by reducing the conviction to reckless endangerment in the second degree.

      10
      [290] Facts
      11

      In February 2003 the 52-year-old defendant, an attorney working as an administrative law judge, attempted suicide in his 12th floor Manhattan apartment. Sealing the apartment door with tape, he blew out the pilot lights of his stove, turned on the gas, took tranquilizers and fell asleep in front of the oven, expecting the gas to kill him. Several hours later, a spark, apparently from the refrigerator compressor, ignited the gas, causing an explosion that wrecked the walls of his apartment and heavily damaged a number of neighboring apartments.

      12

      No one else was seriously injured and defendant himself survived. He was charged with first-degree reckless endangerment pursuant to Penal Law § 120.25, which provides that a person violates the statute "when, under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person."[1]

      13

      Supreme Court found, in a nonjury trial, that defendant's state of mind was not one of depraved indifference but nevertheless, relying on People v Register (60 NY2d 270 [1983]), found him guilty and sentenced him to five years' probation. The Appellate Division affirmed, and a Judge of this Court granted defendant leave to appeal.

      14
      Discussion
      15

      The People first contend that defendant's argument that depraved indifference is a mens rea is unpreserved because he did not plainly present it to the trial court. The trial judge's decision, however, demonstrates that he specifically confronted and resolved this issue. Under these circumstances, we conclude that the preservation was adequate (People v Prado, 4 NY3d 725 [2004]).

      16

      To begin with, there is no dispute that the term "depraved indifference" has the same meaning in both the depraved indifference murder statute and the reckless endangerment statute. Defendant wishes this Court to say that the trial court should have viewed defendant's conduct with a subjective eye where the defendant must "evince a wicked and mischievous disregard [291] (i.e., utter indifference) for the near certain consequences of his... irresponsible act." Defendant argues that under this test, depraved indifference was not established—and indeed ruled out by the factfinder—and therefore his conviction should be reversed.

      17

      The People rely on Register, asserting that depraved indifference refers not to the mens rea or the actus reus of the crime but to the "factual setting in which the risk creating conduct must occur." In People v Register, after a night of drinking, defendant shot a man fatally for no explained reason. Defendant was acquitted of intentional murder but convicted of depraved indifference murder. In a 4-3 decision, a majority of this Court concluded that the Legislature did not intend that a mens rea element beyond mere recklessness be included in the definition of depraved indifference murder. "The concept of depraved indifference was retained in the new statute [adopted in 1965] not to function as a mens rea element, but to objectively define the circumstances which must exist to elevate a homicide from manslaughter to murder" (People v Register, 60 NY2d at 278). The three dissenters, however, contended that the predecessor statutes to Penal Law 125.25 (2) defined depraved indifference as a mens rea and that depraved mind and depraved indifference "connote a culpable mental state" (60 NY2d at 282).

      18

      In People v Sanchez (98 NY2d 373 [2002]), the jury found the defendant not guilty of intentional murder but guilty of depraved indifference murder. The deceased and the defendant had previously been friends, and the shooting occurred after an argument erupted on the day of the shooting. Relying on People v Register, the majority of a divided court concluded that although the gun had been fired at point-blank range, it was fired at an angle, the shooting was instantaneous and impulsive, and the jury could have concluded that "defendant's homicidal level of mental culpability was reckless rather than intentional" (98 NY2d at 378). In dissent, Judge G.B. Smith stated, "To uphold the conviction of depraved indifference murder in this case is to authorize the substitution of depraved indifference murder for intentional murder at any time that a person shoots and kills another" (98 NY2d at 393). Also in dissent, Judge Rosenblatt stated that "by holding the facts at hand sufficient to establish depraved indifference murder, the majority leaves no conceivable circumstances under which a charge of intentional murder will not be amenable to a conviction for depraved indifference murder" (98 NY2d at 394). Judge Rosenblatt added:

      19

      [292] "Register dealt chiefly with the defense of intoxication, but ironically, the case has served as the fulcrum for what has become a steadily growing prosecutorial practice of charging defendants with depraved indifference murder as a companion count to intentional murder. The Register majority brushed aside the dissenters' prediction that the decision would `result in wholesale depraved mind murder prosecutions for what are essentially intentional murders' .... That prediction proved prescient, however, as revealed by the enormous growth in depraved indifference murder companion counts post-Register" (98 NY2d at 398).

      20

      After Register and Sanchez, and beginning in 2003, a number of decisions by this Court have pointed the law in a different direction. In People v Hafeez (100 NY2d 253 [2003]), after a jury found defendant not guilty of intentional murder but guilty of depraved indifference murder, the Appellate Division held that the evidence was insufficient for depraved indifference murder and this Court agreed. The evidence was that months after an unsuccessful confrontation with the deceased, the defendant and codefendant lay in wait for the deceased, and the codefendant stabbed him to death with a knife. Defendant was convicted of depraved indifference murder under an accomplice liability theory. We stated that:

      21

      "[t]o meet their burden for depraved indifference murder, the People must show that defendant's acts were `imminently dangerous and presented a very high risk of death to others' .... Here the actions of both defendants were focused on first isolating, and then intentionally injuring, the victim. From this record there exists no valid line of reasoning that could support a jury's conclusion that defendant possessed the mental culpability required for depraved indifference murder" (100 NY2d at 259).

      22

      In a concurrence, Judge Rosenblatt said that "the Court is limiting Sanchez by properly rejecting the incongruous notion that an intentional killing can reflect depraved indifference," and indicated that "the critical element in depraved indifference murder is not recklessness, but depraved indifference" (100 NY2d at 260).

      23

      In People v Gonzalez (1 NY3d 464 [2004]), after a jury found the defendant not guilty of intentional murder but guilty of [293] depraved indifference murder, this Court determined that a defendant could not be convicted of depraved indifference murder where a defendant first shot the deceased in the chest from a distance of six to seven feet, then shot him in the head as he fell to the floor and shot him eight more times as he lay on the floor. We concluded that the evidence indicated only an intentional murder. We stated:

      24

      "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 ...

      "Depraved indifference murder does not mean an extremely, even heinously, intentional killing. Rather, it involves a killing in which the defendant does not have a conscious objective to cause death but instead is recklessly indifferent, depravedly so, to whether death occurs" (1 NY3d at 467-468).

      25

      In People v Payne (3 NY3d 266 [2004]), after a jury had acquitted the defendant of intentional murder but convicted him of depraved indifference murder, this Court held that defendant could not be found guilty of depraved indifference murder. There, a 20-year friendship between the defendant and the deceased was strained after the deceased was arrested and accused of sexually abusing an eight-year-old playmate of defendant's daughter. The defendant went to the home of the deceased and shot him in the chest with a 12-gauge "elephant" shotgun. We stated, "As the drafters of the Penal Law put it, depraved indifference murder is `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 lions' cage in the zoo'" (3 NY3d at 272). In Payne, we stressed that such "[i]ndifference to the victim's life ... contrasts with the intent to take it" (3 NY3d at 270; see also Gonzalez, 1 NY3d at 467; Hafeez, 100 NY2d at 258-259).

      26

      Finally, in People v Suarez (6 NY3d 202 [2005]), the jury acquitted defendant of intentional murder but found him guilty of depraved indifference murder. The defendant had stabbed his girlfriend in the throat, the chest and the abdomen and left her to bleed to death. In People v McPherson, decided with Suarez, defendant was charged only with depraved indifference murder [294] and first-degree manslaughter. She was convicted of depraved indifference murder. There, the defendant had stabbed the deceased with a knife and left him to die. This Court concluded that rarely can depraved indifference murder apply to the killing of a single victim. In a concurrence, three Judges of this Court indicated that they would "explicitly" overrule People v Register and People v Sanchez (id. at 217 [G.B. Smith, Rosenblatt and R.S. Smith, JJ., concurring]). Another Judge concurred on constraint of our decisions in Hafeez and Payne (id. at 219 [Read, J., concurring]). While the Suarez court did not explicitly overrule Register and Sanchez, we conclude that the law has changed to such an extent that People v Register and People v Sanchez should no longer be followed.

      27

      We say today explicitly what the Court in Suarez stopped short of saying: depraved indifference to human life is a culpable mental state. Our dissenting colleagues contend that this final step in the overruling of Register is unwarranted and unnecessary.[2] Perhaps we would agree with that were it not for the setting in which the present case comes to us. In earlier cases (Hafeez, Gonzalez, Payne, Suarez), we reversed depraved indifference murder convictions without having to discuss explicitly the question of mens rea. It was enough to say—and we said it repeatedly—that those defendants did not commit depraved indifference murder because depravity or indifference was lacking.

      28

      Beginning with Hafeez, the Register/Sanchez rationale was progressively weakened so that it would no longer support most depraved indifference murder convictions, particularly one-on-one shootings or stabbings. Indeed, Judge Read, in her concurrences in Suarez and McPherson, said that the results were compelled by Hafeez and Payne.

      29

      In Suarez, it was not necessary for us to state explicitly whether depraved indifference is a mental state (mens rea). In the case before us, however, the trial judge rendered his verdict in a way that requires us to address directly the question of mens rea.

      30

      [295] Here, defendant might well be said to have acted with the mens rea of depraved indifference had the factfinder simply announced a guilty verdict. Viewing the evidence in the light most favorable to the People, we could properly have affirmed the conviction, concluding that the factfinder inferred that defendant had the requisite mental state (depraved indifference). But the verdict does not allow that to happen here. Here, the trial judge said he would have acquitted defendant of first-degree reckless endangerment but felt himself prohibited by Register from doing so. The Appellate Division ignored the trial judge's findings and affirmed, citing Register. Given the trial judge's findings, we cannot affirm the conviction because we cannot conceive that a person may be guilty of a depraved indifference crime without being depravedly indifferent. When a jury (or here, the court at a bench trial) pointedly says that defendant was not depravedly indifferent, it is not our place to say that he was.

      31

      In Suarez, we could readily hold that under any view of the evidence Suarez's acts did not amount to depraved indifference. The case before us is different. The factfinder here went out of his way to explain that

      32

      "[t]his defendant was a plainly depressed individual, who committed an extremely reckless and foolish act not because of his lack of regard for the lives of others but because of his focus upon his troubles and himself. While being reckless, the defendant's state of mind was not one of extreme wickedness, or abject moral deficiency, or a mischievous disregard for the near certain consequences of his irresponsible act."

      33

      Thus, the factfinder actually pronounced defendant innocent of the core criminal element, depraved indifference. The dissenters protest this, but their objection is more properly directed against the verdict than against the law. That a large number of people were endangered does not mean that defendant was depravedly indifferent, particularly when the factfinder went to great pains to say the opposite.

      34

      We regard this as a juridical imperative, much the same as in any analogous situation. A person accused of stealing may be guilty of larceny, but a guilty verdict may not stand if the jury finds in a special verdict that the defendant did not intend to take anything. So, too, a person may not be said to have acted with the mens rea of depraved indifference when the jury (or [296] court as factfinder) tells us that he was not depravedly indifferent.

      35

      In short, we do not say that someone who endangers others by turning on the gas jets may never be found guilty of a depraved indifference crime. Here, however, because the factfinder told us that defendant was not depravedly indifferent, he cannot be properly convicted of first-degree reckless endangerment.

      36

      While our dissenting colleagues rely primarily on Suarez, we are unable to read Suarez as they do. We disagree with the Chief Judge's suggestion that the per curiam opinion in Suarez "decided the question" (at 302) by declining the suggestion of the concurrence to overrule Register and Sanchez. The three authors of the concurrence also signed the per curiam opinion and did not think that they were deciding the question contrary to their own views. The difference between the per curiam and the concurrence in Suarez was over whether to recognize "explicitly" that Register and Sanchez had been de facto overruled in prior cases. To the extent that the per curiam opinion may have left that question in doubt, the doubt is now removed.

      37

      We agree with the statement in Judge Ciparick's dissent that Suarez correctly states the law in saying that "depraved indifference is best understood as an utter disregard for the value of human life—a willingness to act not because one intends harm, but because one simply doesn't care whether grievous harm results or not" (at 298). We also accept Judge Ciparick's statement, paraphrasing Suarez, that "a depraved and utterly indifferent actor is someone who does not care if another is injured or killed" (id.). To us, however, the words "utter disregard," "willingness," and "does not care" can only describe a state of mind. We thus confirm what is implicit in the line of cases from Hafeez to Suarez. This Court has adopted the view of the Register and Sanchez dissents that "depraved indifference to human life" is a culpable mental state.

      38

      Our holding today will not, as the Chief Judge fears, prevent depraved indifference murder convictions in cases where they are warranted. The mens rea of depraved indifference to human life can, like any other mens rea, be proved by circumstantial evidence. We agree that the Chief Judge's hypothetical—"a person boarded an empty train car and, in order to commit suicide, derailed the train, thereby killing passengers in other cars"—states a "quintessential" case of depraved indifference [297] murder, because in that case the circumstantial proof of depraved indifference would be compelling (at 303). The Chief Judge suggests it is almost equally compelling here—and, indeed, perhaps a reasonable factfinder could infer depraved indifference from these facts. But the factfinder in this case did not.

      39

      Accordingly, the order of the Appellate Division should be modified by reducing defendant's conviction to reckless endangerment in the second degree and remitting to Supreme Court for resentencing and, as so modified, affirmed.[3]

      40
      CIPARICK, J. (dissenting).
      41

      Because I believe that our very recent holding in People v Suarez (6 NY3d 202 [2005]) compels a different result, I respectfully dissent.

      42

      Viewing the evidence in the light most favorable to the People, as we must, a rational trier of fact could reasonably find, beyond a reasonable doubt, the essential elements of the crime of reckless endangerment in the first degree in this case.[4] Reckless endangerment in the first degree "seeks to prevent and criminalize the risk alone created by an actor's conduct" as opposed to proscribing "a particular resulting outcome or injury" (People v Chrysler, 85 NY2d 413, 415 [1995]; see also People v Davis, 72 NY2d 32, 36 [1988]). In a prosecution for first-degree reckless endangerment two elements must be proven: first that defendant recklessly engaged in conduct that created a grave risk of death to another person,[5] and second that the defendant did so under circumstances evincing a depraved indifference to human life.

      43

      Both parties agree that our precedents construing the phrase "circumstances evincing a depraved indifference to human life" [298] as applied to depraved indifference murder are applicable to the crime of reckless endangerment in the first degree. Even giving the same meaning to the phrase "under circumstances evincing a depraved indifference to human life" as used in both the depraved indifference murder statute and the reckless endangerment in the first-degree statute, defendant's conviction should be upheld, as nothing in our precedents requires the imposition of a separate culpable mental state—mens rea—to the element of depraved indifference to human life.

      44

      In Suarez, we made "clear that depraved indifference is best understood as an utter disregard for the value of human life—a willingness to act not because one intends harm, but because one simply doesn't care whether grievous harm results or not" (6 NY3d at 214). Stated differently, a depraved and utterly indifferent actor is someone who does not care if another is injured or killed by his or her extremely dangerous acts, and the failure to give even a thought to such potential harm in the first place can, in and of itself, establish the depraved indifference element of the statute. By requiring a separate mens rea for this second element the majority today has overruled People v Register (60 NY2d 270 [1983]), People v Sanchez (98 NY2d 373 [2002]) and to a certain extent People v Suarez (6 NY3d 202 [2005]), as well as case law dealing with the crime of first-degree reckless endangerment (see e.g. People v Lynch, 95 NY2d 243 [2000]; People v Chrysler, 85 NY2d 413 [1995]; People v Davis, 72 NY2d 32 [1988]).

      45

      In Suarez we stated that depraved indifference reflects "wickedness, evil or inhumanity, as manifested by brutal, heinous and despicable acts" (6 NY3d at 214 [emphasis added]). A violent explosion in a heavily populated multiple-residence apartment building is a brutal, heinous and despicable act, and one who causes such act exhibits wickedness, evil and inhumanity.

      46

      There is no need that a defendant subjectively harbor a "wicked" or "evil" mind, as now required by the majority. Purposefully turning on the gas and creating such an explosion in an occupied apartment building—for whatever reason, here in an attempt to commit suicide—is "`so deficient in a moral sense of concern, so devoid of regard of the life or lives of others, and so blameworthy' as to render the actor as culpable as one whose conscious objective is to [cause injury to others]" (Suarez, 6 NY3d at 214, quoting People v Russell, 91 NY2d 280, 287 [1998]). Defendant's acts in creating an explosive gas [299] environment evince a depraved disregard for the nearly certain consequences of his irresponsible acts. That defendant was focused on his troubles and himself does not render his actions any less irresponsible nor should it provide immunity from prosecution for a felony charge.[6] Conduct evincing depraved indifference to human life is not excusable because defendant's mind was elsewhere or because he turned a blind eye to the potential danger.

      47

      Only six months ago in Suarez, we "depart[ed] slightly from the Register formulation" only to make clear that the "additional requirement of depraved indifference has meaning independent of the gravity of the risk" (6 NY3d at 215).[7] In defining the second element of depraved indifference murder, we did not, however, create a separate mens rea requiring an analysis of a defendant's subjective intent. The gravity of risk was created by defendant's act of flooding his apartment with gas and turning it into a bomb that needed only an ignition source. It was not necessary for the People to prove that in addition to the extremely reckless nature of defendant's conduct, he acted with an "`uncommonly evil and morally perverse frame of mind'" (Sanchez, 98 NY2d at 383, quoting 98 NY2d at 396 [Rosenblatt, J., dissenting]). When viewed objectively, defendant manifested "an utter disregard for the value of human life" (Suarez, 6 NY3d at 214).

      48

      We have identified several quintessential examples of conduct—rare circumstances—evincing depraved indifference to human life, among them the placing of a time bomb in a public place (see Suarez, 6 NY3d at 214). So too the situation here is so inherently dangerous to the lives of others that it should be likewise classified as one of those rare circumstances demonstrating such an utter disregard for the lives of others evincing an actor's depraved indifference to human life.

      49

      I would thus affirm the conviction and hold as the Appellate Division, not on the strength of Register but on the teachings of [300] Suarez, that "[r]eckless endangerment does not require a showing of extreme wickedness or abject moral deficiency on the part of the perpetrator" (People v Feingold, 22 AD3d 242 [1st Dept 2005], citing People v Narimanbekov, 258 AD2d 417 [1st Dept 1999]). It is sufficient that the defendant recklessly engaged in conduct which created a grave risk of death to others and that this defendant did so under circumstances evincing a depraved indifference to human life as we defined it in Suarez.[8]

      50

      Furthermore, this construction is in keeping with the plain language of the statute and its legislative intent. Here the Legislature used the term "recklessly" to define the mens rea element of first-degree reckless endangerment (see Penal Law § 15.05 [3]; § 120.25). A defendant thus must act "recklessly." The additional element that this reckless conduct must be committed "under circumstances evincing a depraved indifference to human life" (Penal Law § 120.25) refers not to a mental state but to the factual circumstances under which the crime occurred (when viewed objectively) evincing a depraved indifference to human life. The Legislature was free to retain the old "depraved mind" language but chose to forgo that in favor of a requirement of indifference (see Suarez, 6 NY3d at 210 n 4).

      51

      Lastly, there is no question here that defendant acted extremely recklessly, as even Supreme Court opined. Its further assessment of defendant's subjective mental state was totally irrelevant. As the trial judge noted, he was expressing a "concern" and would have acquitted defendant if the law was as stated in the dissenting opinions of Register and Sanchez. His expression of concern does not require us to address directly the question of mens rea, as the majority believes it does (majority op at 294). Certainly a trial judge is free to say what he or she believes the law should be but is nonetheless bound to apply the law as it is. We would expect no less from a jury, which is free to privately disagree with the law but is bound to accept it as charged by the judge. The judge here was not required to go beyond his verdict of guilty.

      52

      Accordingly, I would affirm the order below.

      53

      Chief Judge KAYE (dissenting).

      54

      I join fully in Judge Ciparick's [301] dissent. I write separately in light of the majority's decision to overrule People v Register (60 NY2d 270 [1983]), in which I had joined. That extraordinary step is neither necessary, nor warranted, in this case.

      55

      Over the years, we have had a number of occasions to revisit Register, most recently in People v Suarez (6 NY3d 202 [2005]), barely six months ago. In Suarez this Court, in a per curiam opinion, "depart[ed] slightly" from the Register formulation by making clear "that the additional requirement of depraved indifference has meaning independent of the gravity of the risk" (6 NY3d at 215). We did not, however, retreat from a core holding of Register—that the requirement that a defendant act "under circumstances evincing a depraved indifference to human life" does not constitute a mental state.

      56

      As we explained in Suarez, there was good reason for our slight departure from Register. Experience had shown that the fine distinction between the "substantial" risk required to prove manslaughter in the second degree and the "very substantial" risk necessary to elevate the offense to depraved indifference murder had provided "insufficient guidance to prosecutors, courts and juries struggling to distinguish between these very different crimes" (6 NY3d at 215). Further, the proliferation of twin-count indictments alternatively charging defendants who had killed in the course of routine one-on-one confrontations with inconsistent theories had, over time, come to blur the distinction between intentional and depraved indifference murder. At least one federal court had expressed the view that the depraved indifference murder statute had become unconstitutionally vague (see Jones v Keane, 2002 US Dist LEXIS 27418 [US Dist Ct, SD NY, June 6, 2002], revd on other grounds 329 F3d 290 [2d Cir 2003]; St. Helen v Senkowski, 2003 US Dist LEXIS 26642 [US Dist Ct, SD NY, Sept. 19, 2003], revd on other grounds 374 F3d 181 [2d Cir 2004]).

      57

      In addressing these concerns, we made clear that depraved indifference "is best understood as an utter disregard for the value of human life—a willingness to act not because one intends harm, but because one simply doesn't care whether grievous harm results or not" (6 NY3d at 214). "[M]anifested by brutal, heinous and despicable acts, depraved indifference is embodied in conduct that is so wanton, so deficient in a moral sense of concern, so devoid of regard of the life or lives of others, and so blameworthy as to render the actor as culpable as one whose conscious objective is to kill" (id. [internal quotation [302] marks and citations omitted]). Although three concurring Judges expressed a desire to overrule Register, the Court in Suarez decided the question by declining to take that step. Nothing has changed in the intervening weeks to warrant such action now. Certainly we have seen no evidence that the careful medicine administered in Suarez has failed to cure any perceived problems—indeed, it has scarcely had time to take effect.

      58

      The rule currently in place, though it may not be that favored by today's majority, is susceptible of ready application, and results in no injustice. Indeed, it is far more workable than the rule the majority adopts today, as evidenced by the case at hand.

      59

      Defendant, so focused on his desire to take his own life that (we are asked to believe)[9] he gave no thought whatsoever to the life or safety of others, recklessly caused a massive explosion by leaving on the gas jets in a densely occupied residential apartment building in the midst of Manhattan. Miraculously, no one was killed or injured. Both parties agree that the phrase "under circumstances evincing a depraved indifference to human life" must have the same meaning for purposes of the murder statute and the reckless endangerment statute, charged here. That being so, the majority would necessarily hold that this defendant could not have been convicted of depraved indifference murder even if hundreds of people had been killed by the explosion he so recklessly and wantonly caused. I cannot agree.

      60

      To my mind, defendant's extremely reckless conduct squarely evinced "an utter disregard for the value of human life—a willingness to act not because one intends harm, but because one simply doesn't care whether grievous harm results or not" (Suarez, 6 NY3d at 214). The majority would limit this level of disregard for the lives or safety of others to circumstances where the defendant consciously has in mind the likelihood of injury to innocent persons and nevertheless deliberately chooses to proceed with the dangerous course of conduct.

      61

      While I agree that depraved indifference includes these situations, I fail to understand why it must be restricted to such cases. In my view, "utter indifference" to human life easily covers instances in which a person undertaking a mortal act fails to consider the potential impact on his or her neighbors. Indeed, the failure to be at all concerned with the lives of others is the very epitome of depraved indifference, regardless of whether [303] such utter indifference arises from a malicious wickedness toward humanity or, as here, a complete unmindfulness of one's fellows born of total self-absorption.

      62

      In People v Payne (3 NY3d 266 [2004]), this Court identified two "species" of depraved indifference—one involving acts directed against a particular victim, "marked by uncommon brutality" but without an intent to kill; the other involving defendants who, "lacking the intent to kill (but oblivious to the consequences and with depraved indifference to human life) shoot[] into a crowd or otherwise endanger[] innocent bystanders" (3 NY3d at 271). The instant case fits squarely within this second category, which we have never before felt the need to restrict. Rather, in Suarez, where we carefully delineated the rare circumstances in which a one-on-one confrontation might properly result in depraved indifference murder, we noted that the "[q]uintessential examples" of depraved indifference involve situations in which more than one person is endangered (Suarez, 6 NY3d at 214).

      63

      By definition, depraved indifference murder can be found only where there is not an intent to kill. Its starting point is an unintentional killing. Thus, whatever underlying motive a defendant may have with respect to some goal unrelated to the ultimate victims of his actions, it is the conduct itself that demonstrates depraved indifference. Plainly, if a person boarded an empty train car and, in order to commit suicide, derailed the train, thereby killing passengers in other cars, there would be a quintessential depraved indifference murder. The case before us is no different.

      64

      If a defendant means to hurt someone, a finding of depraved indifference is precluded (see Suarez, 6 NY3d 202 [2005]; Payne, 3 NY3d 266 [2004]; People v Gonzalez, 1 NY3d 464 [2004]; People v Hafeez, 100 NY2d 253 [2003]). But if, as here, he succeeds in persuading a trier of fact that he didn't mean to hurt anyone, the Court also forecloses his conviction of any crime requiring a showing of depraved indifference. Legally sufficient evidence of depraved indifference cannot be rendered insufficient by a defendant's mere denial of guilt of the charged crime—that is, by a claim that "I didn't mean to hurt anyone; I never thought about whether anyone else might be in danger."

      65

      While defendant's denial that he considered his neighbors, if believed by the factfinder, would absolve him of culpability for intentional homicide, it is the very proof of his depraved indifference. [304] A person living in a multiple-residence apartment building who is about to engage in mortally dangerous conduct should give thought to those who might be around him—whether in the same apartment, in the building or in the area. Regardless of whether it simply didn't occur to defendant to think about others—or whether he did give a thought to their safety but just didn't care—either way he evinced a depraved indifference to human life.[10] For this he was convicted of a felony and sentenced to five years' probation. The majority concludes, however, that defendant's perilous acts made him culpable of no more than reckless endangerment in the second degree—a misdemeanor.

      66

      Contrary to the majority, the factfinder here did not find defendant "innocent of the core criminal element, depraved indifference" (majority op at 295 [emphasis deleted]). Rather, the factfinder simply believed that "defendant's state of mind was not one of extreme wickedness, or abject moral deficiency, or a mischievous disregard for the near certain consequences of his irresponsible act." But until today, such moral deficiency was not the test of depraved indifference. In other words, it does not matter that the trial judge believed that defendant would not have been guilty of a differently defined crime. Under Register, as well as Suarez, defendant's subjective mental state with respect to his potential victims was irrelevant. The People did not need to prove, as opined by the trial judge, that defendant acted "because of his lack of regard for the lives of others" (emphasis added), but merely that he acted with such disregard.

      67

      Finally, the Court's limitation on depraved indifference is not restricted to cases involving one-on-one confrontations. Rather, prosecution for the second "species" of depraved indifference— that in which multiple persons are endangered—will now also be foreclosed by a defendant's claim (if believed) that he or she didn't mean it. The majority today leaves nothing of depraved indifference but a risk for prosecutors in charging these offenses.

      68

      GRAFFEO, J. (dissenting).

      69

      I continue to believe that People v [305] Suarez (6 NY3d 202 [2005]) was wrongly decided since it deviated significantly from People v Sanchez (98 NY2d 373 [2002]) (see People v Suarez, 6 NY3d at 219 [Graffeo, J., concurring in part and dissenting in part]). Because the majority in this case goes further and overrules Sanchez, I agree with my dissenting colleagues that today's transformation of the well-settled meaning of "depraved indifference" from an objective factual assessment into a subjective mens rea requirement cannot be reconciled with the language of the reckless endangerment statute or the prior rationale of this Court (see People v Suarez, 6 NY3d at 219-228 [Graffeo, J., concurring in part and dissenting in part]). That being said, my dissenting colleagues have cogently explained why the facts of this case fit within the depraved indifference jurisprudence discussed in Suarez (see id. at 214) and defendant's conviction should be affirmed on this basis alone.

      70

      Order modified, etc.

      71

      [1] Identical language is contained in the depraved indifference murder statute, Penal Law § 125.25 (2), which reads: "A person is guilty of murder in the second degree when ... 2. Under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person."

      72

      [2] Contrary to what Judge Ciparick's dissent may suggest, we do not overrule "case law dealing with the crime of first-degree reckless endangerment" (at 298). We overrule, by implication, only those depraved indifference reckless endangerment cases that rest on the premise that depraved indifference is measured not by a culpable mental state but by an objective assessment of the risk involved. Further, we reject Judge Ciparick's assertion that we have overruled Suarez. We have, however defined depraved indifference as a culpable mental state—a point not definitively addressed in Suarez.

      73

      [3] Penal Law § 120.20 reads, "A person is guilty of reckless endangerment in the second degree when he recklessly engages in conduct which creates a substantial risk of serious physical injury to another person."

      74

      [4] "A person is guilty of reckless endangerment in the first degree when, under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person" (Penal Law § 120.25).

      75

      [5] Penal Law § 15.05 (3) defines "recklessly" as follows:

      76

      "A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation."

      77

      [6] Penal Law § 120.20 defines reckless endangerment in the second degree as when a person "recklessly engages in conduct which creates a substantial risk of serious physical injury to another person." This crime is a class A misdemeanor.

      78

      [7] Certainly the per curiam opinion in Suarez represented "the concurrence of four ... necessary to a decision" (NY Const, art VI, § 2 [a]). The majority did not implicitly or "explicitly" overrule Register and Sanchez, nor had they been "de facto overruled in prior cases" (majority op at 296). The concurrence of three in Suarez would have preferred that result, and achieves it here.

      79

      [8] The abuses that we have sought to correct—the prosecution of twin-count indictments under both intentional and depraved indifference theories—are not present here. I see no need to go beyond what we held in Suarez to expand the definitional scope of depraved indifference by holding that proof of depraved indifference now requires an assessment of defendant's subjective intent, especially in a case involving multiple potential victims.

      80

      [9] Even the smell of gas in a residence should precipitate some investigation because danger is obvious.

      81

      [10] Of course, reckless endangerment in the first degree, like depraved indifference murder, also requires recklessness, which involves the conscious disregard of a known risk (see Penal Law § 15.05 [3]). Defendant does not contend that the trial proof was insufficient to establish the element of recklessness, and the trier of fact expressly found that defendant committed "an extremely reckless and foolish act."

    • 5.6 People v. Heidgen

      1
      22 N.Y.3d 259 (2013)
      2
      3 N.E.3d 657
      3
      980 N.Y.S.2d 320
      4
      THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
      v.
      MARTIN HEIDGEN, Appellant.
      THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
      v.
      TALIYAH TAYLOR, Appellant.
      THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
      v.
      FRANKLIN McPHERSON, Appellant.
      5
      Nos. 174, 176, 177, Ind., 1910N/05
      6

      Court of Appeals of New York.

      7
      Argued October 8, 2013.
      8
      Decided November 21, 2013.
      9

      263*263 Jillian S. Harrington, Monroe Township, New Jersey, for appellant in the first above-entitled action.

      10

      264*264 Kathleen M. Rice, District Attorney, Mineola (Maureen McCormick, Tammy J. Smiley and Judith R. Sternberg of counsel), for respondent in the first above-entitled action.

      11

      265*265 Lynn W.L. Fahey, Appellate Advocates, New York City (Erica Horwitz of counsel), for appellant in the second above-entitled action.

      12

      Daniel M. Donovan, Jr., District Attorney, Staten Island (Anne Grady and Morrie I. Kleinbart of counsel), for respondent in the second above-entitled action.

      13

      Edelstein & Grossman, New York City (Jonathan I. Edelstein of counsel), for appellant in the third above-entitled action.

      14

      266*266 Kathleen M. Rice, District Attorney, Mineola (Maureen McCormick, Tammy J. Smiley and Jason R. Richards of counsel), for respondent in the third above-entitled action.

      15

      Frank A. Sedita, III, District Attorney, Buffalo, and Anthony Girese, District Attorney, Bronx (Courtney Robbins and Joseph McCormack of counsel), for District Attorneys Association of the State of New York, amicus curiae in the first, second and third above-entitled actions.

      16

      Judges GRAFFEO, PIGOTT, RIVERA and ABDUS-SALAAM concur with Chief Judge LIPPMAN; Judge SMITH dissents in an opinion in which Judge READ concurs in a separate opinion.

      17

       

      18
      267*267 OPINION OF THE COURT
      19

       

      20

      Chief Judge LIPPMAN.

      21

      Defendants in these three appeals challenge their convictions of depraved indifference murder. Each defendant drove in an outrageously reckless manner while intoxicated by alcohol or drugs and caused the death of at least one other person. Defendants maintain that the evidence was not legally sufficient to support their convictions—specifically, that there was insufficient proof that they had the requisite mental state of depraved indifference. Although intoxicated driving cases that present circumstances evincing a depraved indifference to human life are likely to be few and far between, we find that the evidence in each of these unusually egregious cases was legally sufficient to support the convictions.

      22

       

      23
      People v Heidgen
      24

       

      25

      At about 4:30 p.m. on July 1, 2005, defendant Martin Heidgen met a friend for drinks at a Manhattan bar. When the friend left about three hours later, defendant, who remained at the bar, had already consumed six beers. Later that night, between 11:00 p.m. and midnight, defendant drove to a party at a friend's house in Merrick. Defendant proceeded to consume several additional alcoholic beverages at the party. Although he appeared to be intoxicated or "buzzed," defendant was not unsteady on his feet or slurring his words. Defendant left the party after about an hour and a half, without saying goodbye. It was not only well-known among their group of friends that there would 268*268 always be a place to stay or a designated driver available if necessary, but one friend testified that she had had a specific conversation with defendant to that effect about a week prior to the party.

      26

      Just before 2:00 a.m., witnesses saw defendant driving north on the southbound side of the Meadowbrook Parkway. One witness testified that she pulled over when she saw defendant's headlights coming at her and honked her horn three times, but that defendant did not deviate from the center lane or reduce his speed, which she estimated at about 70 to 75 miles per hour. A second witness testified that, when he saw defendant's pickup truck approaching, the witness drifted slightly to the left and that "it appeared as if [defendant's] car was drifting with me." After defendant passed him, the witness looked in his rearview mirror and observed that defendant's brake lights were not illuminated. The witness estimated defendant's speed at between 70 and 80 miles per hour.

      27

      A third witness testified that he had been driving his motorcycle on the northbound side of the Meadowbrook Parkway, when he saw defendant's vehicle on the wrong side of the road. He testified that he rode next to defendant—separated by the guardrail—and that they were traveling at about 70 miles per hour. Despite the witness's "loud" motorcycle at his side, defendant only looked straight ahead and appeared "very intent at driving." The witness lost sight of defendant's car when the guardrail was replaced by a median of trees and bushes.

      28

      After traveling about 2½ miles on the wrong side of the parkway, past multiple "wrong way" signs and the backs of several other road signs, defendant crashed head-on into a limousine that was bringing several family members home from a wedding. Both the driver, Stanley Rabinowitz, and seven-year-old passenger, Katie Flynn, were killed on impact. Several other family members sustained grievous physical injuries. One of the passengers in the limousine, Christopher Tangney, a former Nassau County Police Officer, testified to what he had observed through the vehicle's windshield. Tangney testified that they saw defendant coming at them, but that Rabinowitz was unable to move out of the left lane because there was another car next to them. Tangney estimated defendant's speed at about 65 miles per hour and observed that, when the limousine attempted to move to the right, defendant "seemed to follow us, the headlights."

      29

      269*269 Reverend Steed Davidson testified that he had been driving in the center lane at about 55 miles per hour and that the limousine had just finished passing him on the left when the crash occurred. Davidson testified that he saw defendant's headlights coming toward him, but was unable to react before impact. Davidson did not see defendant's vehicle swerve or slow down before the crash.

      30

      Defendant was arrested at the scene[1] and transported to the hospital. He smelled of alcohol and was generally characterized as either unresponsive or incoherent by police officers and medical professionals. At the request of the State Police, the emergency room nurse obtained a blood sample from defendant which revealed a blood alcohol concentration of .28%.[2]

      31

      Dr. Closson, a forensic toxicologist, testified for the prosecution that defendant's blood alcohol concentration meant that he would have had difficulty processing stimuli in the environment, that his cognitive abilities would have been impeded and that he could have had blurry, "tunnel vision," which would have reduced his peripheral vision. The blood alcohol concentration could have contributed to the disregard of substantial, or even grave, risks. Closson testified that a "divided attention activity," such as driving, would have presented difficulties because persons under the influence of alcohol are more likely to focus on one task than on performing several activities simultaneously. In addition, defendant's reaction time would have been decreased—although it would have decreased as a matter of seconds, rather than minutes, and would not have caused him to fail to perceive or react to his surroundings at all. Dr. Closson testified that the .28% reading meant that defendant had approximately 14 drinks in his system at the time of the test, but gave a "conservative estimate" that defendant had consumed at least 20 drinks in all.

      32

      270*270 Defendant was advised that he was under arrest at about 12:30 p.m. on July 2, although at that time he was not told that two people had been killed in the crash. Defendant told police that he had gotten into an argument over the telephone with his ex-girlfriend in Arkansas and that he went into "self-destruct mode." He related that he was "very upset and depressed" and had consumed a fifth of "Old Parr Scotch" before going out and driving around. Defendant complained that he had financial problems and that everything was going wrong since he had moved to New York from Arkansas. He also told the officers that his grandmother had recently passed away. In response to multiple police inquiries on the subject, defendant denied that he had been trying to hurt himself.

      33

      A letter that defendant wrote to one of his friends from prison explained that the statements he had made to the police were false. He noted that he had not spoken with his ex-girlfriend at all that night and that he did not have any financial problems. In addition, he pointed out that portions of his statement were lines from the movies Ocean's Eleven and Pulp Fiction. He further stated that the empty bottle of "Old Parr Scotch" in his apartment had been empty for months prior to the accident. Defendant indicated that he constructed this story in order to protect the hosts of the party and to portray himself as a person "worthy of leniency."

      34

      The defense retained an engineer, Steven Schneider, who was qualified as an accident reconstruction expert.[3] Schneider calculated that the limousine had been traveling at 49 miles per hour on impact. He further estimated that defendant's vehicle had been traveling somewhere between 27 and 38 miles per hour. The People did not call an expert and instead relied upon the testimony of lay eyewitnesses regarding defendant's speed.

      35

      The jury was instructed that, when determining whether defendant had acted with depraved indifference to human life, it should consider whether he was too intoxicated to be able to form the requisite mental state. Defendant was convicted after trial of two counts of murder in the second degree, three counts 271*271 of assault in the first degree and two counts of operating a vehicle while under the influence of alcohol. The court denied defendant's posttrial motion to set aside the verdict, rejecting defendant's arguments asserting juror misconduct and that the People failed to prove beyond a reasonable doubt that he had the state of mind of depraved indifference to human life.

      36

      The Appellate Division affirmed, finding the evidence legally sufficient to support the conviction (87 AD3d 1016 [2d Dept 2011]). The Court also determined that the allegations of juror misconduct in defendant's CPL 330.30 motion were properly rejected. One Justice dissented in part and would have modified to reduce the convictions of murder in the second degree to manslaughter in the second degree and the convictions of assault in the first degree to assault in the second degree. The dissent would have found the evidence legally insufficient to support a finding of depraved indifference to human life, since the People failed to establish that defendant was aware of, and indifferent to, the grave risks presented by his conduct. The dissent would have found defendant "too inebriated to form such a mens rea" (87 AD3d at 1034). The dissenting Justice granted defendant leave to appeal to this Court (17 NY3d 957 [2011]) and we now affirm.

      37

       

      38
      People v Taylor
      39

       

      40

      On October 18, 2006, defendant Taliyah Taylor spent most of the evening attempting to record a song she had written in honor of her late father, who had died when she was a child. Unable to recall the last verse of the song, she took Ecstasy at about 6:30 p.m. in order to help her focus and to feel closer to her father. She also drank one beer and smoked marijuana. A few hours later, defendant left the recording session, taking her young nephew with her "to get the evil off of [him]." She brought him to her mother's house, where she removed his clothing. Taylor also removed her own clothing to show that she had nothing to hide and should be accepted as she was. Defendant ran outside, still naked, attempting "to get away from everything, all the problems, all the hate, all the greed." Over her girlfriend's vigorous objections, Taylor then took the friend's car, later explaining that she wanted to drive "as fast as the car would take her."

      41

      At about 10:45 p.m., defendant drove on Forest Avenue in Staten Island (a local road with a posted speed limit of 35 miles per hour) at speeds between 80 and 90 miles per hour, without 272*272 headlights, on the wrong side of the road, and struck a pedestrian, Larry Simon, who was crossing the street. Defendant, who was wearing her seat belt, did not slow down, sound her horn or make any attempt to swerve. Simon was killed instantly, sustaining injuries that were more consistent with having been hit by a subway train than by a car. Without slowing, defendant continued driving in the lane for oncoming traffic, ran a red light and struck a vehicle that was stopped at that light, injuring the vehicle's occupants. Defendant's car then flipped over, before coming to rest in a parking lot.

      42

      Bystanders helped defendant from the vehicle and she began jumping up and down, chanting "money, power, respect." When the police arrived at the scene, defendant tried to drive away in an unattended squad car, but was stopped and arrested. When asked for her pedigree information, defendant gave her girlfriend's name instead of her own on three separate occasions. The emergency medical personnel generally characterized defendant as alert and coherent, though under the influence of drugs or alcohol. A blood test performed after midnight showed the presence of methylenedioxyamphetamine (MDA)[4] in a concentration that indicated defendant was still actively under the influence of the drug.

      43

      The forensic toxicologist testified that MDA is a central nervous system stimulant that, at higher dosages, can have hallucinogenic effects. He observed that individuals under the influence of MDA often exhibit enhanced risk-taking behavior and that they would have difficulty with a multi-task activity such as operating a motor vehicle—they might either switch tasks too quickly or focus on one task to the exclusion of others. Although cannabinoids were detected in an initial screening test, their presence was not confirmed by any followup testing. However, the toxicologist testified that cannabinoids are also hallucinogenic compounds and could have an additive or synergistic effect if taken with MDA.

      44

      One of the police officers testified that defendant told him that, "as she was driving, things were coming at her fast and she made the side to side motion also like she is avoiding things." When asked if she remembered hitting the pedestrian, she told the officer that "she saw him and then he was gone." 273*273 She also related "that it was like she was in a movie, but she knew she wasn't in a movie."

      45

      The court denied defense counsel's motion to dismiss the depraved indifference murder charge, rejecting the argument that the People did not establish the necessary state of mind. The jury was instructed that it could consider whether defendant was too intoxicated to be capable of forming the mental state of depraved indifference. Defendant was convicted of murder in the second degree, reckless endangerment in the first degree and operating a motor vehicle while under the influence.

      46

      The Appellate Division affirmed, finding legally sufficient evidence to support the conviction (98 AD3d 593 [2d Dept 2012]). A Judge of this Court granted defendant leave to appeal (20 NY3d 1065 [2013]) and we now affirm.

      47

       

      48
      People v McPherson
      49

       

      50

      At about 3:15 a.m. on October 19, 2007, defendant Franklin McPherson left a nightclub with his cousin, his girlfriend and one of her friends, and began arguing with his girlfriend in the parking lot. He was apparently upset that he had lost something and was seen searching through the trunk of his car. Witnesses then heard several gunshots and defendant drove away with his cousin in the car. Police later found five 9 millimeter shell casings in the parking lot.

      51

      At 3:30 a.m., defendant's car was seen driving west in the eastbound lanes of the Southern State Parkway at speeds of about 70 to 75 miles per hour. He traveled about five miles in the wrong direction, passing eight "wrong way" signs and the backs of 21 large signs that could only be read by eastbound drivers. A construction worker in the right-hand, eastbound lane, testified that when he saw defendant driving toward him, he blew his Mack truck's air horn for three or four seconds, but defendant just kept going. Other witnesses testified that cars were veering out of defendant's way but that defendant made no attempt to brake or to avoid other vehicles.

      52

      Near exit 13, defendant crashed head-on into a Jeep without slowing down, killing the Jeep's driver, Leslie Burgess, instantly. Defendant was placed under arrest and his blood alcohol content was measured at .19%. In a subsequent inventory search of his vehicle, police found 9 millimeter ammunition in the trunk, as well as an unloaded 9 millimeter handgun in the car. The gun was later determined to be the same one that had fired the 274*274 shots in the parking lot earlier that evening. A small plastic bag containing cocaine was also found inside defendant's vehicle.

      53

      Defense counsel argued to the jury during opening and closing statements that they had to determine whether McPherson had been capable of perceiving the risk presented by his behavior and purposely ignored that risk. In addition, when discussing how to formulate an appropriate jury charge on depraved indifference, the trial court specifically raised People v Feingold (7 NY3d 288 [2006]) and asked the parties whether the holding of that case was applicable if defendant was oblivious to his surroundings by virtue of his voluntary intoxication. Defense counsel, however, failed to move to dismiss the depraved indifference murder charge on that basis. The jury was instructed that it must consider whether defendant was intoxicated to such a degree that he was incapable of forming the mental state of depraved indifference.

      54

      Defendant was convicted of murder in the second degree, vehicular manslaughter in the first degree, aggravated driving while intoxicated, operating a motor vehicle while under the influence of alcohol, criminal possession of a weapon in the second degree and criminal possession of a controlled substance in the seventh degree. The Appellate Division affirmed, finding defendant's argument that the evidence was legally insufficient to support his conviction unpreserved for review and, in any event, without merit (89 AD3d 752 [2d Dept 2011]). The Court also rejected the argument that defendant received ineffective assistance of counsel.

      55

      One Justice dissented and would have modified, in the interest of justice, by reducing the second degree murder conviction to manslaughter in the second degree. The dissent would have found that the People failed to prove that defendant was aware that he was driving the wrong way on the highway and disregarded the grave risk of death to others. The dissenting Justice granted defendant leave to appeal to this Court (19 NY3d 969 [2012]) and we now affirm.

      56

       

      57
      Depraved Indifference
      58

       

      59

      As we held in People v Feingold (7 NY3d 288 [2006]), depraved indifference is a culpable mental state. That mental state "is best understood as an utter disregard for the value of human life—a willingness to act not because one intends harm, but because one simply doesn't care whether grievous harm results or not" (Feingold, 7 NY3d at 296 [internal quotation marks and 275*275 citation omitted]). Circumstantial evidence can be used to establish the necessary mens rea (see Feingold, 7 NY3d at 296).

      60

      The defendant in Feingold had been convicted of reckless endangerment in the first degree—recklessly engaging in conduct that creates a grave risk of death to others, under circumstances evincing a depraved indifference to human life. Feingold had attempted suicide by blowing out the pilot light of his stove and turning on the gas. However, a spark from the refrigerator caused an explosion, resulting in structural damage to his apartment building. Although we recognized that, viewed in the light most favorable to the People, the evidence could have supported the conclusion that defendant had the necessary mens rea, the trial judge's express finding that the defendant's state of mind did not reflect depraved indifference foreclosed such a determination in that case (see Feingold, 7 NY3d at 295).

      61

      More recently, in People v Valencia (14 NY3d 927 [2010]), we addressed a fact pattern similar to the cases at issue. After spending the evening drinking at a friend's house, the defendant drove in the wrong direction on a Long Island parkway at a high rate of speed, for about four miles. He crashed into two oncoming vehicles, causing serious physical injury to the drivers. Valencia's blood alcohol concentration was measured at.21%. We held that there was legally insufficient evidence to support the conviction for first degree (depraved indifference) assault, noting that "[t]he trial evidence established only that defendant was extremely intoxicated and did not establish that he acted with the culpable mental state of depraved indifference" (14 NY3d at 927-928).

      62

      Valencia is, however, distinguishable from the present cases. There, the trial judge, as the factfinder, determined that the defendant had been "oblivious" to the risks caused by his drunk driving at the time of the offense, but nevertheless convicted him of depraved indifference assault based simply on his earlier acts of drinking to the point of extreme intoxication, despite defendant's awareness that he would be driving in that condition later that evening (see 14 NY3d at 928 [Graffeo, J., concurring]). To the contrary, in each of the instant appeals, the jury was asked to decide whether the defendant was incapable of forming the requisite mental state by reason of his or her intoxication and each jury rejected the argument that defendant's impairment rose to that level. Further, none of the instant appeals presents the question of whether the mens rea of depraved indifference must be contemporaneous with the actus reus of the offense.

      63

      276*276 In People v Prindle (16 NY3d 768 [2011]), the defendant led the police on a high speed chase after attempting to steal two snow plows and ultimately crashed into another vehicle, killing one of its occupants. We reduced the defendant's depraved indifference murder conviction to manslaughter in the second degree. Observing that the jury had been instructed, without objection, according to the pre-Feingold standard of People v Register (60 NY2d 270 [1983]), we found that the evidence was legally insufficient to support the determination that defendant had demonstrated a depraved indifference to human life (see Prindle, 16 NY3d at 771). We compared Prindle's case to People v Gomez (65 NY2d 9, 12 [1985]), where, after striking two cars, the defendant drove on the sidewalk, struck and killed one child, refused his passenger's pleas to apply the brakes, continued to accelerate and struck another child on the sidewalk. By contrast, Prindle, although plainly driving in an unsafe manner, had been actively attempting to avoid hitting other vehicles.

      64

      These cases demonstrate that cases involving a depraved indifference to human life are highly fact-specific and dependent upon the individual defendant's particular mental state—a factor that may be extremely difficult to establish. Indeed, intoxicated driving cases in general, although clearly examples of dangerous behavior, are not thought of as "quintessential" cases of depraved indifference—such as,

      65
      "firing into a crowd; driving an automobile along a crowded sidewalk at high speed; opening the lion's cage at the zoo; placing a time bomb in a public place; poisoning a well from which people are accustomed to draw water; opening a drawbridge as a train is about to pass over it and dropping stones from an overpass onto a busy highway" (People v Suarez, 6 NY3d 202, 214 [2005] [citations omitted]).
      66

      Recognizing that "it is important that law enforcement and prosecutors have the tools necessary to properly charge and convict [those] who have committed a DWI resulting in personal injury or death" (Senate Introducer Mem in Support, Bill Jacket, L 2007, ch 345 at 8), the legislature has enacted the aggravated vehicular homicide and assault statutes (Penal Law §§ 125.14, 120.04-a), which provide for enhanced punishment of those individuals who cause death or serious physical injury while operating a motor vehicle while intoxicated, when, for example, the individual has a blood alcohol content of at least.18. These statutes, however, do not foreclose the possibility of 277*277 prosecution for depraved indifference murder where egregious circumstances warrant that charge, as they do here.

      67

      "A verdict is legally sufficient when, viewing the facts in a light most favorable to the People, there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt" (People v Danielson, 9 NY3d 342, 349 [2007] [internal quotation marks and citations omitted]). The reviewing court must "marshal competent facts most favorable to the People and determine whether, as a matter of law, a jury could logically conclude that the People sustained its burden of proof" (Danielson, 9 NY3d at 349).

      68

      When viewed in the light most favorable to the People, there was legally sufficient evidence to support Heidgen's convictions for depraved indifference murder. The jury could have determined that defendant was unhappy and self-destructive. Defendant's friends who observed him at the party thought that he was intoxicated but not so intoxicated that he was incoherent, unsteady on his feet or slurring his speech. Heidgen drove the wrong way on the highway for over two miles without reacting to other drivers coming at him, car horns, or wrong way signage. Perhaps most significantly, more than one witness testified that defendant appeared to follow, or track, the headlights of oncoming vehicles. In addition, the toxicologist testified that defendant's blood alcohol level would have caused delayed reaction time, but that it would not have rendered him incapable of reacting at all. Based on this evidence, the jury could have found that, despite defendant's intoxication, he perceived his surroundings. The jury could have reasonably concluded that defendant drove, knowing that he was on the wrong side of the road and with an appreciation of the grave risks involved in that behavior.[5] One who engages in what amounts to a high speed game of chicken, with complete disregard for the value of the lives that are thereby endangered, is undoubtedly an individual whose culpability is the equivalent of an intentional murderer.

      69

      The evidence is likewise legally sufficient to support Taylor's conviction for depraved indifference murder. Taylor 278*278 buckled her seat belt and set out to drive as fast as she could go. She proceeded at speeds in excess of 80 miles per hour on a local road, without lights, at times on the wrong side of the street. Her statements to police revealed that she had perceived at least some of the obstacles in her path, notably the pedestrian victim prior to striking him. Taylor's behavior was obviously frenzied,[6] but it is also clear that she was aware of her surroundings. From the above evidence, the jury could have concluded that defendant recklessly engaged in conduct that created a grave risk of death to others, with an utter disregard for whether any harm came to those she imperiled.

      70

      For the same reasons, the evidence was legally sufficient to establish that Taylor was guilty of reckless endangerment in the first degree. As defendant herself observes, there was no change in her mental state between the time she struck the pedestrian and when she hit the other vehicle. Rather, after colliding with pedestrian Simon, she proceeded at full speed.

      71

      In McPherson, the depraved indifference argument arises in the context of an ineffective assistance of counsel claim. Defendant's trial took place in 2008, approximately two years after this Court's decision in Feingold which, as noted above, conclusively established depraved indifference as a culpable mental state. Indeed, when discussing how to formulate the jury charge, the trial court specifically raised Feingold to the parties—in particular, whether the holding applied if the defendant had been oblivious to his surroundings because he was voluntarily intoxicated. Under these circumstances, even if a reasonable defense lawyer might have questioned whether a motion to dismiss on this basis was "a clear winner," he or she could not have reasonably determined that the argument was "so weak as to be not worth raising" (People v Turner, 5 NY3d 476, 483 [2005]). Defense counsel should have moved to dismiss the charge of depraved indifference murder.

      72

      Nonetheless, defendant failed to establish that he received ineffective assistance of counsel. In evaluating an ineffective assistance of counsel claim, we have looked to the fairness of the proceedings as a whole, or whether defendant received meaningful representation. We have recognized that "a defendant's showing of prejudice [is] a significant but not indispensable element" in determining whether the standard of meaningful 279*279 representation was achieved (People v Stultz, 2 NY3d 277, 284 [2004]).

      73

      Here, a motion to dismiss would not have been successful. The People established that defendant became enraged after losing something and fired off several gunshots. He then drove at excessive speed, in the wrong direction on the parkway for about five miles. During that time—more than four minutes— defendant did not appear to apply his brakes and several oncoming cars swerved to avoid him. He also passed numerous signs that should have alerted him that he was traveling in the wrong direction. In addition, he did not slow down or pull over in response to a truck driver sounding his air horn. There was, under the circumstances, ample evidence supporting the conclusion that defendant was aware that he was driving on the wrong side of the road and continued to do so with complete disregard for the lives of others. Therefore, although the motion to dismiss should have been made, we are persuaded that defendant was not prejudiced and otherwise received meaningful representation. Since there was no reasonable probability that the result would have been different, defendant's claim also fails under the federal standard (see Strickland v Washington, 466 US 668, 694 [1984]).

      74

      Perhaps the most difficult aspect of all of these cases is whether there was sufficient evidence that the defendants were aware of and appreciated the risks caused by their behavior— specifically, as to Heidgen and McPherson, that they knew they were driving on the wrong side of the parkway and proceeded regardless. However, as noted above, each jury rejected the conclusion that the defendant was too intoxicated to form the requisite intent. Despite defendants' seemingly inexplicable behavior, the People simply are not required to provide a motive for their conduct. Rather, depraved indifference can be proved circumstantially. Here, in each case, a rational jury could have found that the defendant, emboldened by alcohol or drugs, appreciated that he or she was engaging in conduct that presented a grave risk of death and totally disregarded that risk, with catastrophic consequences.

      75

      One of Heidgen's additional arguments merits further discussion. He asserts that his blood was illegally drawn without his consent or a warrant, and should have been suppressed. The suppression court found that it was unnecessary to obtain defendant's consent before drawing his blood because it would 280*280 have been impossible to do so, given his complete disorientation. This finding was undisturbed by the Appellate Division and there is support in the record for the determination (see People v Harper, 7 NY3d 882, 883 [2006]).[7]

      76

      Defendant also maintains that the police should have obtained a warrant before drawing his blood and that, under recent United States Supreme Court precedent, they were required to do so (see Missouri v McNeely, 569 US ___, 133 S Ct 1552 [2013]). In McNeely, the Supreme Court held that the natural dissipation of alcohol from the blood does not constitute a per se exigency justifying an exception to the warrant requirement of the Fourth Amendment—rather, whether a warrantless blood test was reasonable is dependent on the circumstances of the particular case (see 569 US at ___, 133 S Ct at 1563).

      77

      We note that, unlike the defendant in McNeely, Heidgen did not refuse to consent to the blood test. His blood was taken pursuant to a statutory presumption of consent to chemical testing that applies to all persons who operate vehicles within the state (see Vehicle and Traffic Law § 1194 [2] [a]). Although defendant raised several arguments at the suppression hearing concerning the validity of his blood test—whether the blood had been drawn by a licensed professional nurse, whether it was drawn within the statutory time limits and whether he was capable of consent—the current argument was not one of them. In the midst of an argument that Heidgen should have been asked for his consent, counsel at one point stated that "they should have called the district attorney's office, or certainly secured a warrant, and they didn't." This in no way amounts to an argument that the drawing of defendant's blood while he was incapacitated, under a statutory presumption of consent, violated his Fourth Amendment rights. Under the circumstances, we find the current argument unpreserved for our review.

      78

      We have considered defendants' remaining arguments and find them to be without merit.

      79

      281*281 Accordingly, the order of the Appellate Division in each case should be affirmed.

      80

      SMITH, J. (dissenting).

      81

      We have said several times that depraved indifference to human life is a very unusual state of mind (see People v Lewie, 17 NY3d 348, 359 [2011]; People v Suarez, 6 NY3d 202, 212 [2005]; People v Payne, 3 NY3d 266, 270 [2004]). But experience shows that juries, especially in cases with inflammatory facts, will often find depraved indifference where the evidence does not support it, and as a result we have reversed many convictions in recent years because the proof of this mens rea was insufficient (see People v Barboni, 21 NY3d 393, 408 n [2013, Smith, J., concurring] [collecting cases]).

      82

      Cases in which intoxicated drivers kill innocent people are among the most inflammatory, and thus among the most likely to generate depraved indifference murder convictions where a conviction of a lesser (but still serious) crime is all that is warranted. These three cases, to my mind, exemplify that problem. The majority says "intoxicated driving cases that present circumstances evincing a depraved indifference to human life are likely to be few and far between" (majority op at 267)—yet today it affirms all three of these convictions. In doing so, it departs from the rigor we have previously shown and makes it more difficult to attain our long-sought goal of reserving convictions of this crime for the very few cases that warrant them.

      83

      I find the evidence in all three cases insufficient to support murder convictions. My reasoning differs as between the Heidgen and McPherson cases on the one hand, and Taylor on the other.

      84

       

      85
      I
      86

       

      87

      Heidgen and McPherson are very similar cases. (In McPherson, a preservation problem complicates the analysis, but I agree with the majority that, for the reasons it explains, McPherson ultimately turns, as does Heidgen, on whether the evidence of depraved indifference was sufficient.) In both cases, a man became extremely drunk, drove for miles the wrong way on a divided highway, and caused a fatal accident. The simplest and likeliest inference from the evidence is that both men were so drunk that they did not know what they were doing. Why, after all, would anyone do such a dangerous thing on purpose?

      88

      Of course, Heidgen's and McPherson's drunkenness does not excuse what they did. They were unforgivably reckless in getting 282*282 on the highway at all in the condition they were in, and the consequences of their recklessness were horrible. They were unquestionably guilty of manslaughter in the second degree, a class C felony punishable by up to 15 years in prison (Penal Law §§ 125.15 [1]; 70.00 [2] [c]), and under today's statutes they would also be guilty of aggravated vehicular homicide, a class B felony punishable by up to 25 years (Penal Law §§ 125.14 [1], [4]; 70.00 [2] [b]). But it is clear, and the majority implicitly recognizes, that unless these two defendants knew they were driving the wrong way they were not guilty of depraved indifference murder. In the absence of such knowledge, their conduct does not show "depraved indifference to human life" (Penal Law § 125.25 [2]), which we have defined to mean "an utter disregard for the value of human life—a willingness to act ... because one simply doesn't care whether grievous harm results or not" (majority op at 274, quoting People v Feingold, 7 NY3d 288, 296 [2006]; see People v Valencia, 14 NY3d 927 [2010]).

      89

      The majority decides that the jury could have found that Heidgen and McPherson "knew they were driving on the wrong side of the parkway and proceeded regardless" (majority op at 279). I agree that, if that happened, these defendants could be found guilty of depraved indifference murder; and perhaps it did happen—but I do not see how a rational jury could find beyond a reasonable doubt that it did. Anyone who knowingly drives the wrong way on a divided highway must either have chosen a bizarre way of committing suicide or else be prey to some grandiose illusion that all the other cars will get out of his way. These records contain no more than hints that either Heidgen or McPherson was in such an extraordinary state of mind.

      90

      As to Heidgen, there is some evidence that he had been feeling depressed, but there is also much uncontroverted evidence that he seemed cheerful on the evening in question. He told police after the accident that he had been in "self-destruct mode"; but in the same conversation he forcefully denied that he was trying to harm himself ("No, not under any circumstances"). Drunk driving is itself self-destructive behavior, and I see no basis for inferring that Heidgen's reference to his own self-destructiveness meant anything more than this.

      91

      The majority relies more heavily on the testimony of two witnesses that, the majority says, would justify a finding that Heidgen engaged "in what amounts to a high speed game of chicken" (majority op at 277). One of the witnesses said that, when the 283*283witness's own car "drifted a little to the left .... it appeared as if [Heidgen's] car was drifting with me." Another, a passenger in the limousine that Heidgen crashed into, testified that Heidgen's car "moved ... toward us .... seemed to follow us." This could mean that Heidgen was deliberately aiming his car at the others, but I do not see how a reasonable juror could infer, with the confidence necessary to support a criminal conviction, that that is what he was doing. It is an extremely unusual thing to do.

      92

      As to McPherson, the evidence of a depraved state of mind is even thinner. It is a fair inference from the record that, before he started to drive, McPherson was angry at his girlfriend and fired several gunshots (not, so far as the record shows, at anyone or anything in particular). This simply does not prove that McPherson was either suicidal or on a near-insane pursuit of thrills—as he would have to be to drive knowingly the wrong way. It is much more likely that, in his drunken rage, he did not focus on his surroundings after he started driving.

      93

      As to both Heidgen and McPherson, the majority suggests that the very fact that they did drive the wrong way for miles, ignoring many signs and other events that should have alerted them, supports an inference that they knew what they were doing. To me, it supports more strongly the inference that—as blood tests proved—they were very drunk. Ignoring warnings that would alert a sober person is what drunk people do. I do not doubt that, as the majority says, a drunk person is not biologically incapable of perceiving and reacting to his surroundings, but anyone who has ever met one knows that they often fail to do so.

      94

      I find the Heidgen and McPherson cases to be indistinguishable from People v Valencia (14 NY3d 927 [2010]), another case involving a drunken wrong-way driver. The majority distinguishes Valencia on the ground that there was, in that case, a finding of fact that defendant was oblivious to the risks he was running (majority op at 275). But our memorandum in Valencia does not rely on, or even mention, that finding; it says the evidence was "insufficient" to support a finding of depraved indifference. If it was insufficient there, it is insufficient here.

      95

      There is, of course, one conspicuous difference between these two cases and Valencia: Valencia did not kill anyone. The conviction we reversed in Valencia was for depraved indifference assault. In these cases, three people died, one of them a young 284*284 child. Heidgen and McPherson are at fault for these deaths, and deserve severe punishment. But they are not—or at least, were not proved to be—murderers. They did not kill their victims intentionally, and—drawing all reasonable inferences in favor of the People—there is no more than a possibility that they did so with depraved indifference to human life. Their convictions should be reduced to manslaughter in the second degree.

      96

       

      97
      II
      98

       

      99

      I would also reduce Taylor's conviction, but hers is a different sort of case.

      100

      While we can only guess what was in Heidgen's and McPherson's minds when they committed their crimes, there is considerable evidence of what Taylor was thinking. While recording a song in tribute to her long-deceased father, she took Ecstasy and drank beer to help her feel "closer to her father" and "concentrate more." Then, after becoming annoyed with a friend, she left the recording session, taking her nephew with her to "get like the evil off" the child. She took the boy to her mother's house, where she removed first his clothes and then her own. After an argument with her mother, she left the house, still naked, trying "to get away from everything, all the problems, all the hate, all the greed." She got into a car, wanting to drive it "as fast as the car would take her, as fast as she could." She believed that "God wanted her to drive naked." As she was driving she observed that "things were coming at her fast." She eventually hit and killed a pedestrian: She later remembered "him being there and then being gone." After she hit another car and hers turned over, she was found with her eyes shut, saying "money, power, respect"—a chant she resumed after leaving the car, while jumping up and down. Then she got into a police car and tried unsuccessfully to drive it away.

      101

      On this record, a reasonable juror could infer beyond a reasonable doubt that Taylor chose to drive at a very high speed, that she knew that she might hit someone, and that she was unmoved by that risk. If she were not so obviously mentally impaired, it might be reasonable to conclude from these facts that she was depravedly indifferent to human life. But in my view, those words simply cannot be applied to someone so unhinged.

      102

      I do not suggest that Taylor was legally insane (though I am somewhat surprised she did not raise an insanity defense), or 285*285 that she had an extreme emotional disturbance as that term is used in the Penal Law (§ 125.25 [1] [a]; such a disturbance reduces what would otherwise be intentional murder to manslaughter, but is not mentioned in the depraved indifference murder statute). Still, it is hardly debatable that, even by comparison with other intoxicated drivers, Taylor was in a highly abnormal condition. Depraved indifference—the willingness to risk harm because one simply does not care—is a more clear-sighted and cold-blooded state of mind than the one this record shows. I would therefore reduce Taylor's conviction, as well as Heidgen's and McPherson's, to second degree manslaughter.

      103

      READ, J. (dissenting).

      104

      Judge Smith amply demonstrates that the evidence in these three cases is insufficient to support murder convictions under our depraved indifference murder jurisprudence as it has stood at least since People v Feingold (7 NY3d 288 [2006]) overruled People v Register (60 NY2d 270 [1983], cert denied 466 US 953 [1984]). We have elsewhere recounted the stepwise progression of our retreat from Register (see generally Feingold, 7 NY3d at 290-294; Policano v Herbert, 7 NY3d 588 [2006]), and there is no need to repeat that narrative here. Suffice it to say that jettisoning Register was controversial. Only three of the current members of the Court participated in the relevant decisions; and two of the three were not persuaded that overruling Register was wise or necessary, at least not initially (see People v Suarez, 6 NY3d 202, 219 [2005, Read, J., concurring in result on constraint; Graffeo, J., dissenting]). But the Court ultimately decided that depraved indifference is a culpable mental state; that recklessness, no matter how extreme, is not enough by itself to support a conviction for the crime of depraved indifference murder. Under Register, by contrast, a conviction for depraved indifference murder hinged upon an objective assessment of the degree of risk presented by the defendant's reckless conduct.

      105

      Essentially, the majority has resurrected the Register standard for cases in which intoxicated drivers kill innocent people, or at least has done so here in order to salvage these three convictions. But any departure from Feingold for drunk driving cases is contrary not only to our precedent, but also to legislative intent. The legislature in 2007—just a year after we decided Feingold—amended the Penal Law to create the new crime of aggravated vehicular homicide, a class B felony with a penalty of up to 25 years in prison (see Penal Law § 125.14; see also L 286*286 2007, ch 345).[*] This crime occurs when an individual kills someone while driving with ability impaired by alcohol or drugs, along with the presence of at least one of the following factors: a blood alcohol content of .18 or higher; a DWI conviction within the previous 10 years; the crash caused the death of more than a single person; the crash killed one person and severely injured another; a previous conviction under Penal Law articles 120 or 125 involving the operation of a motor vehicle; the crash caused the death of a passenger in the offender's vehicle who was a child of 15 years of age or less; or the offender was driving with a suspended or revoked license from any state.

      106

      In fashioning this crime, the legislature was, at least in part, responding to prosecutors' pleas that "[r]ecent court decisions [i.e., Feingold and the decisions leading up to it] ha[d] so limited the application of the depraved indifference statutes to vehicular crimes as to make them inapplicable"; and "[p]erversely," a driver might as a result try to defend against such a charge by using a claim of extreme intoxication to negate the newly required culpable mental state (id. at 15-16, June 15, 2007 letter from District Attorneys Association of the State of New York [emphasis added]; see also Paul Shechtman, The Meaning of Depraved-Indifference Murder; New Legislation?, NYLJ, Apr. 4, 2005 at 26, col 1 [exploring the implications of the Court's evolving depraved indifference jurisprudence for the intoxication defense]).

      107

      In sum, the legislature has addressed the proper standards for assessing the culpability of drunk drivers who cause fatalities, and the proper measure of their punishment. And it did not choose to do so by amending the second-degree murder statute, which the majority now reinterprets so as to uphold these convictions for depraved indifference murder.

      108

      In each case: Order affirmed.

    • 5.7 People v. Lewie

      1
      17 N.Y.3d 348 (2011)
      2
      953 N.E.2d 760
      3
      929 N.Y.S.2d 522
      4
      THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
      v.
      ALICIA LEWIE, Appellant.
      5
      No. 113.
      6

      Court of Appeals of New York.

      7
      Argued May 3, 2011.
      8
      Decided June 9, 2011.
      9

      351*351 Matthew C. Hug, Troy, for appellant.

      10

      352*352 Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport of counsel), for respondent.

      11

      353*353 Derek Champagne, District Attorney, Albany (Morrie I. Kleinbart of counsel), for District Attorneys Association of the State of New York, amicus curiae.

      12

      Judges CIPARICK, GRAFFEO, READ and PIGOTT concur with Judge SMITH; Judge JONES dissents in part and votes to modify by dismissing count seven of the indictment charging manslaughter in the second degree and by dismissing the count charging reckless endangerment, in a separate opinion in which Chief Judge LIPPMAN concurs.

      13

       

      14
      OPINION OF THE COURT
      15

       

      16

      SMITH, J.

      17

      A jury convicted defendant of second degree manslaughter and first degree reckless endangerment for her role in the events leading to the death of her son. In so doing, the jury found that defendant acted both recklessly and with depraved indifference to human life. We hold that the record supports the jury's finding as to the first of these mental states, but not the second. We therefore uphold the conviction for manslaughter and vacate the conviction for reckless endangerment.

      18

       

      19
      I
      20

       

      21

      On November 13, 2007, defendant and the man she lived with, Michael Flint, brought her eight-month-old son, Colbi Bullock, to a hospital emergency room. The child was not breathing and had no pulse. Attempts to resuscitate him did not succeed, and he was pronounced dead the following day.

      22

      354*354 At the time of his death, Colbi had injuries consistent with very severe abuse. There were many bruises on his face — around his cheek, his chin, both eyes and one ear — and there were also bruises elsewhere on his head, and on his neck, chest and abdomen. There were patterns of bruises and abrasions on his arms consistent with three human bite marks, two on the right arm and one on the left. The injuries on his neck were consistent with choking. His ribs had been broken at least a month previously; this injury was consistent with squeezing, or grabbing and shaking. It also appeared that the ribs had been reinjured more recently. A bone in the forearm had been recently broken, close to a bite mark. A doctor who conducted an autopsy found that injury to be "consistent with someone biting and snapping the arm at the same time." He also found evidence of a brain injury, in the form of hemorrhages less than four days old. In the doctor's opinion, the brain injury was the cause of death.

      23

      It is not disputed that Colbi's injuries were inflicted by Michael Flint. Flint pleaded guilty to two counts of depraved indifference murder, and related lesser charges. Defendant was prosecuted on two counts of second degree manslaughter based on two different theories: that, in the last two or three days of Colbi's life, she knew he had life-threatening injuries and failed to seek medical help; and that, in the last 45 days of his life, she left him in Flint's care, knowing that to do so was to put the child's life in danger. She was also charged with first degree reckless endangerment and with endangering the welfare of a child.

      24

      Defendant was convicted on all four counts. The Appellate Division reversed as to the first manslaughter count, finding that the evidence did not establish defendant's knowledge that the injuries the child had received were life-threatening, and otherwise affirmed (People v Lewie, 67 AD3d 1056 [3d Dept 2009]). A Judge of this Court granted defendant leave to appeal (14 NY3d 889 [2010]). We now affirm as to the manslaughter and endangering the welfare of a child counts, but reverse as to reckless endangerment.

      25

       

      26
      II
      27

       

      28

      The People have not challenged the Appellate Division's holding that the evidence was insufficient on the first of the two manslaughter counts, and defendant does not dispute the sufficiency of the evidence that she was guilty of endangering the welfare of a child. She does challenge the sufficiency of the 355*355 evidence supporting her remaining manslaughter conviction and her conviction for reckless endangerment. As to both counts, the critical question is what the evidence shows as to defendant's state of mind when, over a period of six weeks, she repeatedly left her baby with the man who abused and eventually killed him. We will summarize the evidence on that issue, resolving any conflicts, as the jury presumably did, in the People's favor.

      29

      Defendant and Colbi began living with Flint when Colbi was about three months old. Defendant worked full time; she hired a babysitter, but Flint was often alone with Colbi. A few days before Colbi's death, defendant dismissed the babysitter and agreed with Flint that Flint would care for the child while defendant worked.

      30

      Seven friends and acquaintances of defendant testified to contacts with defendant, Flint and Colbi during the time the three of them lived together. Five of them said that they saw bruises on Colbi, and six of them said that defendant expressed, in one way or another, knowledge, belief or fear that Flint was abusing the child. One said that defendant told her "how she felt uncomfortable leaving the baby home with Michael, that she was scared, she never knew what she was going to go home to." The same witness said defendant "told me that Michael had shaken the baby ... shaken and bit him." Another witness recounted a conversation between defendant and Flint, as defendant described it to the witness: "she had told him he had to be more careful with Colbi ... and if he happened to get angry or upset, to shake the teddy bear instead of Colbi." (In a statement to police after Colbi's death, defendant admitted telling Flint something quite similar.) A third witness said that Flint had shown the witness some bruises on Colbi's head and that, when defendant learned of the conversation, she "walked over to Michael and started yelling at him .... She asked him why he pointed out the bruises to me."

      31

      Three witnesses said they had told defendant to call the police, leave the apartment or both. A fourth told her that the idea of Flint as babysitter "scared me and made me quite nervous for Colbi," and a fifth, when defendant told him that Flint would be babysitting, observed: "You're nuts."

      32

      There was other evidence that defendant knew Flint could be violent and cruel. Three witnesses testified that defendant told them Flint had abused her physically: one said that, according to defendant, Flint had shoved, hit and bitten her; another that 356*356defendant had "bruises ... that she said [were] from Michael"; and a third that she had "bruises and a burn" that she said "were from Mike." Two witnesses testified that defendant knew Flint had been charged with cruelty to a dog, and one said that she had "started to believe" he was guilty of that crime. The same witness testified that, according to defendant, Flint had once kicked a kitten against a wall; defendant later found the kitten dead; and "she believed Michael had killed the cat."

      33

      The events of the last days of Colbi's life, while directly relevant to the dismissed manslaughter count (based on failure to seek medical care), also have some bearing on the counts before us, because they show defendant's persistence in leaving Colbi with a dangerous man. Flint called defendant at work on November 12 to tell her that "the baby had fallen in the shower." Defendant reported this to a coworker who was a certified nursing assistant, and received advice about what symptoms to look for. Arriving home, defendant found, according to her statement to the police, that Colbi "had bruising on the side of his face, his eyes were black and blue, he had a fat lip, and he had redness on his torso and his neck area." Flint told her the baby had vomited — one of the symptoms the coworker had identified as calling for medical attention.

      34

      Defendant not only sought no care for the baby; there was evidence that she tried to conceal the injuries. A witness who encountered Colbi, Flint and defendant the following morning, before defendant went to work, testified that her attention was drawn by Colbi's "persistent, weak ... very strange cry." Colbi was dressed in a snowsuit, with a hood covering his head (though defendant herself wore a T-shirt). When the witness slid the hood back, she saw that Colbi had two black eyes, and asked defendant: "Did you take him to the hospital?" Defendant replied, falsely, that she had been at the hospital all night, and that the doctor had told her that the baby was fine. Later that day, defendant went to work as usual, leaving Colbi with Flint for the last time.

      35

      We must decide whether this evidence shows the degree of culpability necessary to support defendant's manslaughter and reckless endangerment convictions. We consider the two separately.

      36

       

      37
      Manslaughter
      38

       

      39

      Defendant was convicted of manslaughter in the second degree, a class C felony, under Penal Law § 125.15 (1), applicable to someone who "recklessly causes the death of another 357*357 person." "Recklessly" is defined in Penal Law § 15.05 (3), which says, in relevant part:

      40
      "A person acts recklessly with respect to a result... when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur ... The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation."
      41

      The question here is whether the jury could find, beyond a reasonable doubt, that defendant was aware of, and consciously disregarded, a substantial and unjustifiable risk that leaving Colbi in Flint's care would lead to Colbi's death. It is not enough that defendant should have known the child's life was in danger, or that she did know the child could be seriously hurt. She must have actually known of, and consciously disregarded, a risk to the child's life (see People v Wong, 81 NY2d 600, 608 [1993]). On the other hand, it is not necessary to a manslaughter conviction that defendant knew the child would die, or believed it likely. Even a small risk that a baby will die of child abuse is "substantial and unjustifiable."

      42

      We conclude that the evidence is sufficient to support the jury's finding that defendant knew such a risk existed. The evidence shows that defendant knew, or at least believed it possible, that Flint was hitting, shaking and biting her child. She knew that he was capable of inflicting significant injury on an adult, herself. She believed him capable of killing a small animal in a rage. She was worried enough to tell Flint that, if he was angry, he should "shake the teddy bear instead of Colbi." Yet, she left Colbi with Flint again and again — even after she saw, on November 12 and 13, that Colbi had been seriously hurt.

      43

      It is, perhaps, conceivable that defendant did not actually know that Flint's maltreatment of Colbi created a risk to the child's life, but the jury could rationally find that she did know it. The dissent, in concluding otherwise, proceeds on the mistaken premise that "[w]e know" from the Appellate Division's dismissal of the first manslaughter count that defendant perceived no substantial and unjustifiable risk to Colbi's life during the child's last three days (dissenting op at 367). In fact, the dismissal establishes only that the People failed to prove defendant knew the injuries Colbi had already received 358*358 were life-threatening. There is no inconsistency in holding, as the Appellate Division correctly did, that the People presented sufficient evidence that defendant knew — before and during the last days of Colbi's life — of a substantial and unjustifiable risk that Flint would injure him fatally.

      44

      Having found that defendant knew of that risk, the jury was also justified in finding that she consciously disregarded it. And it is obvious that the risk was "of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation." The evidence was therefore sufficient to support defendant's conviction for manslaughter in the second degree.

      45

       

      46
      Reckless Endangerment
      47

       

      48

      Reckless endangerment in the first degree is defined by Penal Law § 120.25: "A person is guilty of reckless endangerment in the first degree when, under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person."

      49

      This crime, a class D felony, is less serious than manslaughter in the second degree. Yet the mental culpability necessary to support defendant's reckless endangerment conviction is greater than that required to support her manslaughter conviction: to be guilty on the reckless endangerment count, she must have acted not only recklessly, but also with depraved indifference to human life.

      50

      The reason for this apparent anomaly is an exercise of prosecutorial discretion. The People chose not to charge defendant with depraved indifference murder, though such a charge has just as much basis in the record as the charge of first degree reckless endangerment. The definition of depraved indifference murder contained in Penal Law § 125.25 (2) is identical to the definition of reckless endangerment that we have quoted, except that the murder statute adds the words "and thereby causes the death of another person." Here, of course, the person who was put at risk did die, and indeed the jury, in convicting defendant of manslaughter, so found. Thus the jury that convicted defendant on the reckless endangerment count would, if it was logically consistent, also have convicted her of depraved indifference murder had that charge been presented to it. And we cannot uphold her reckless endangerment conviction unless we would uphold a murder conviction on the same facts.

      51

      The distinction between conscious disregard of a known risk to human life (required for a reckless manslaughter conviction) 359*359 and depraved indifference to human life (required for a depraved indifference murder or first degree reckless endangerment conviction) can be hard to grasp, especially in a disturbing case like this one. Consciously to disregard a substantial risk to the life of one's own child — as the jury found, on legally sufficient evidence, this defendant did — is shocking behavior, and in ordinary speech people might call it "depraved." But "depraved indifference to human life," as used in the murder and reckless endangerment statutes, is something even worse.

      52

      Our cases make clear that the word "indifference" is to be taken literally: "depraved indifference is best understood as an utter disregard for the value of human life — a willingness to act... because one simply doesn't care whether grievous harm results or not" (People v Feingold, 7 NY3d 288, 296 [2006], quoting 7 NY3d at 298 [Ciparick, J., dissenting], quoting People v Suarez, 6 NY3d 202, 214 [2005]). In other words, a person who is depravedly indifferent is not just willing to take a grossly unreasonable risk to human life — that person does not care how the risk turns out. This state of mind is found only in "rare cases" (Suarez, 6 NY3d at 218-219 [G.B. Smith, Rosenblatt and R.S. Smith, JJ., concurring]). Such cases do exist; in the situation before us, Flint pleaded guilty to depraved indifference murder, and we do not suggest that his plea was ill-founded. But depraved indifference to the life of another is still rare, and it is surely even rarer when the other person is one's own child.

      53

      Here, while the evidence certainly shows that defendant cared much too little about her child's safety, it cannot support a finding that she did not care at all. On the contrary, the evidence shows that defendant feared the worst and — recklessly, as the jury found — hoped for the best. A witness who unsuccessfully advised defendant to call the police about Flint's behavior testified that defendant seemed "worried," and no witness's testimony points to a contrary finding. Some of the evidence most damaging to defendant on the manslaughter count is actually favorable to her on the depraved indifference issue. Thus her statement that she "was scared" and "never knew what she was going to go home to" shows that she was fearful of harm to her baby, not that she was indifferent to the possibility. And in telling Flint to "shake the teddy bear instead of Colbi," she was trying, however weakly and ineffectively, to protect the child.

      54

      There is, it is true, evidence that defendant not only knew of, but tried to conceal, Flint's abuse of the child. She chastised 360*360 Flint for showing someone Colbi's bruises and, in the last hours of Colbi's life, she tried to hide his injuries and lied to minimize their severity. Even this, however, does not show — and nothing in the record shows — that defendant did not care whether Colbi lived or died. Trying to cover up a crime does not prove indifference to it.

      55

      In short, while the evidence is sufficient to support the jury's finding that defendant was guilty of manslaughter, it would not support a conviction for the even more serious crime of depraved indifference murder. Perhaps the People implicitly recognized this when they decided not to bring a murder prosecution — even though they asked the jury to find all the elements of depraved indifference murder. Since a murder conviction could not stand on this record, as a matter of logic the conviction of depraved indifference reckless endangerment cannot stand either.

      56

       

      57
      III
      58

       

      59

      Defendant suggests several other reasons for reversal. We reject them all; three warrant some discussion.

      60

      First, defendant claims that one of several statements that she gave to the police after Colbi's death should have been suppressed because it was taken in violation of her "indelible" right to counsel (see generally People v Lopez, 16 NY3d 375, 377 [2011]; People v Bing, 76 NY2d 331 [1990]). That right attached, defendant says, when counsel was appointed for her in a Family Court proceeding, hours before Colbi was officially pronounced dead. Though the child was, according to the first doctor who saw him, "moribund" and "essentially deceased" when he arrived at the hospital on November 13, a vain effort to resuscitate him continued for almost 24 hours. During that time, a proceeding was begun to remove Colbi from defendant's home, and Family Court appointed a Legal Aid lawyer to represent defendant. The People were notified of the appointment at 4:06 P.M. on November 14; Colbi was declared dead, thus mooting the Family Court proceeding and ending the attorney-client relationship, at 6:18 P.M. During that two-hour interval, defendant, who had previously received Miranda warnings and agreed to speak to the police, continued answering their questions. She now says that the questioning should have stopped when the People received notice that she was represented by counsel.

      61

      We have never held, and we now reject the argument, that the indelible right to counsel can attach by virtue of an attorney-client relationship in a Family Court or other civil proceeding. 361*361 The indelible right, as Judge Kaye's concurring and dissenting opinion in Bing explained, has "at its core the perception that in criminal cases — wholly unlike civil cases — the presence of an attorney is the most effective means we have of minimizing the disadvantage at which an accused is placed when ... directly confronted with the awesome law enforcement machinery possessed by the State" (76 NY2d at 351 [internal quotation marks omitted and emphasis added]). Thus while an attorney-client relationship formed in one criminal matter may sometimes bar questioning in another matter in the absence of counsel (see Lopez, 16 NY3d at 380), a relationship formed in a civil matter is not entitled to the same deference.

      62

      People v Townes (41 NY2d 97 [1976]), on which defendant relies, is distinguishable. There, an attorney-client relationship was formed in a criminal proceeding: "the defendant was arraigned in criminal court and counsel was assigned by order of that court" (id. at 99). A police officer then interviewed the defendant, in the absence of counsel, in connection with a complaint the defendant had filed with the Civilian Complaint Review Board, and the People sought to use the resulting statements in the criminal case. We held that the criminal and Review Board proceedings were so closely related that the indelible right, which attached when an attorney-client relationship was formed in the criminal case, barred questioning in the non-criminal one. But here no relationship was formed in a criminal case, and no indelible right ever attached.

      63

      Secondly, defendant argues that the trial court erred in its response when, during jury deliberations, one of the jurors sent an odd and inappropriate note asking for the opportunity to thank all concerned, after the verdict was rendered, for the privilege of serving. The note mentioned, among other things, the breakup of the juror's marriage and her view that the male lawyer who sat in the second chair at the prosecution table was a "Cutie"; the juror asked, perhaps jokingly, to be given that lawyer's telephone number when the trial was over.

      64

      We think the trial judge handled this problem quite skillfully. After disclosing the note to counsel and discussing it with them, he interviewed the juror in counsel's presence; explained to her gently that the note was inappropriate; and obtained her assurance that nothing, including her favorable impression of a prosecutor, would prevent her from being fair to both sides. Nothing in the interview, or in the note itself, suggests that the 362*362 juror was biased. Indeed, she made clear that her gratitude for the opportunity to serve extended not only to the judge and both sides' lawyers, but to defendant personally. Defendant argues in substance that the juror's note and her comments during the dialogue in chambers show that the juror had an eccentric personality, but eccentrics are not barred from serving on juries. Under CPL 270.35 (1), a sworn juror may be discharged only if the court finds that she "is grossly unqualified to serve ... or has engaged in misconduct of a substantial nature." This juror was not grossly unqualified and engaged in no substantial misconduct. There was no reason for the trial judge either to discharge her or to make further inquiry.

      65

      Thirdly, defendant complains of five words in the trial court's response to a juror's question during deliberations about the meaning of recklessness. In its original charge, the court defined that term twice, once in explaining the elements of manslaughter and again in explaining the elements of reckless endangerment. The court's definition tracked the language of Penal Law § 15.05 (3), and defendant does not complain of it. After retiring to deliberate, the jury asked several times for the definition to be reread, and the court obliged. Later, in response to a jury note, the court gave a slightly expanded version of the definition, not changing its substance but separating it into three components — awareness of a risk, conscious disregard of the risk, and gross deviation from a reasonable person's standard of conduct. This supplemental charge, also, is not now challenged.

      66

      After some other supplemental instructions were given, a juror asked for further explanation of recklessness, saying: "Are we supposed to do [sic] consider how the Defendant is thinking or what a reasonable person would think?" After a discussion with counsel outside the jury's presence, the court replied that recklessness "requires both of those things." The judge again took the jury through the three components of recklessness, summarizing the second — conscious disregard of a known risk — in this way:

      67
      "Then the second part is required as well. So, besides the first part, the second part must be that he or she — in this case, the Defendant — was aware of and consciously disregarded the risk. So, that goes to the particular person, what they saw, what they should have seen, and what they disregarded" (emphasis added).
      68

      363*363 The court concluded its response to the juror's question by saying:

      69
      "So, long and short answer to your question is both of those things come in: What the individual Defendant's aware of, and what she or he consciously disregards; and then secondly, whether that risk that they're aware of deviated from — constitutes a gross deviation from the standard that a reasonable person would observe."
      70

      It is undisputed that, in including the words "what they should have seen" in its description of conscious disregard, the court misspoke. The jury was required to consider what risk defendant actually perceived and disregarded, not what she should have perceived. Indeed, when this supplemental charge is examined minutely, the words "should have seen" do not make sense; it is not possible "consciously" to disregard something one "should have" seen but did not.

      71

      In evaluating a jury charge, however, we are "not limited to the appropriateness of a single remark" (People v Umali, 10 NY3d 417, 426 [2008]). Rather, we examine "the context and content of the entire charge" (id. at 427) and determine whether "the instruction as a whole ... was likely to confuse the jury" (People v Fields, 87 NY2d 821, 823 [1995]). We are satisfied that the minor error in the supplemental charge here created no significant risk of confusion. The jurors had already heard, several times, a completely correct explanation of recklessness as defined in the Penal Law. The juror's specific question — should the jury consider what defendant actually thought, or what a reasonable person would have thought — was concisely answered at the beginning and end of the supplemental charge with the word "both." And the supplemental charge as a whole makes clear that the jury must consider both the risk defendant actually perceived and disregarded, and what a reasonable person in her situation would have done. The supplemental charge, taken as a whole, was proper.

      72

      Accordingly, the order of the Appellate Division, insofar as appealed from, should be modified by vacating defendant's conviction for reckless endangerment in the first degree, dismissing that count of the indictment and remitting the matter to County Court for resentencing, and as so modified affirmed.

      73

      JONES, J. (dissenting in part).

      74

      I agree with the majority's dismissal of the reckless endangerment count. However, I dissent 364*364 from that portion of the majority's opinion upholding defendant's conviction for manslaughter in the second degree (count seven of the indictment) because I do not believe this conviction was supported by legally sufficient evidence.

      75

      In a legal sufficiency inquiry, this Court's role is limited to determining whether, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" (Jackson v Virginia, 443 US 307, 319 [1979]; see also People v Contes, 60 NY2d 620, 621 [1983]). Where the evidence adduced at trial establishes "any valid line of reasoning and permissible inferences [that] could lead a rational person" to convict, then the conviction survives sufficiency review (People v Williams, 84 NY2d 925, 926 [1994]). "A sufficiency inquiry requires a court to marshal competent facts most favorable to the People and determine whether, as a matter of law, a jury could logically conclude that the People sustained its burden of proof" (People v Danielson, 9 NY3d 342, 349 [2007]).

      76

      Penal Law § 125.15 (1) provides that a "person is guilty of manslaughter in the second degree when ... [h]e recklessly causes the death of another person" (emphasis added). Penal Law § 15.05 (3) defines the term "recklessly" as follows:

      77
      "A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation."
      78

      Thus, the elements of second-degree manslaughter are "the creation of a substantial and unjustifiable risk [of death]; an awareness and disregard of the risk on the part of defendant; and a resulting death" (People v Licitra, 47 NY2d 554, 558 [1979]).

      79

      Our case law makes clear that causation is "an essential element which the People must prove beyond a reasonable doubt" in a second-degree manslaughter prosecution (People v Stewart, 40 NY2d 692, 697 [1976]). That is, "the defendant's actions must be a sufficiently direct cause of the ensuing death" (id.). If the evidence only establishes a possible or probable connection between defendant's acts and the victim's death, the evidence is not legally sufficient to support a conviction for second-degree manslaughter (see id.).

      80

      365*365 Defendant Alicia Lewie is not alleged to have herself ever physically abused her child. She is accused of recklessly causing the death of her eight-month-old son by repeatedly leaving him in her live-in boyfriend's (Michael Flint) unsupervised care during a 45-day period prior to the child's death (between October 1, 2007 and November 14, 2007), despite being aware that Flint was physically abusing the child. Because she is a "passive" defendant charged with reckless manslaughter, this Court's decision in People v Wong (81 NY2d 600 [1993]) has application. In Wong, both caretakers of an infant who died of shaken baby syndrome were convicted of first- and second-degree manslaughter and endangering the welfare of child, even though there was no evidence as to which of the caretakers shook the child. In reversing the convictions, this Court held that the prosecution had to establish that the passive defendant was personally aware that the physical abuse had taken place and "that such abusive conduct created a risk that the infant would die without prompt medical treatment" (Wong, 81 NY2d at 608 [emphasis added]; see People v Northrup, 83 AD2d 737 [3d Dept 1981]). In Northrup, defendant mother was convicted in Otsego County Court of depraved indifference murder stemming from the death of her son at the hands of her live-in boyfriend, who physically abused the child. Defendant was charged with causing her son's death by unjustifiably and inexcusably failing to obtain or provide medical care or assistance for him. In reversing this conviction on legal sufficiency grounds, the Appellate Division wrote:

      81
      "Evidence is lacking that this 23-year-old woman, without medical training or knowledge, was cognizant of that risk [of death] and consciously disregarded it. Although the external injuries were serious, [her son] ceased crying and walked about without complaining shortly after [her boyfriend] left. Particularly noteworthy is the fact that the injury causing his death was an internal one, not detectable from observing the boy's body. In our view, this record does not support a finding that defendant acted recklessly" (Northrup, 83 AD2d at 738 [emphasis added]).
      82

      The Northrup court further stated, "[s]ince reckless conduct is also a requisite for manslaughter in the second degree, one of the lesser included offenses which was charged, defendant's conviction of that crime must likewise be ruled out" (83 AD2d at 738).

      83

      366*366 The prosecution here built its reckless manslaughter case around the allegation that sometime during the stated 45-day period, defendant actually became aware that Flint was physically abusing her son and chose to ignore the grave risk this conduct posed for the child by repeatedly leaving him in Flint's unsupervised care. To make out its case, the prosecution had witnesses testify that defendant told them that Flint, on numerous occasions, had physically abused her and was physically abusing her child in her absence. Further, the prosecution proffered medical evidence which confirmed that defendant's son had been repeatedly abused during the period of time that defendant left him in Flint's unsupervised care.

      84

      While this evidence may have shown that defendant was criminally negligent in leaving her child with Flint, it did not establish the elements necessary to support a reckless manslaughter conviction.[*] The evidence, when viewed in the light most favorable to the prosecution, established that the acts of abuse took place while defendant was at work — i.e., defendant could not know the severity of the abuse to the child; it was not possible for defendant to know that the injuries sustained by her child were life-threatening or could contribute to his death because to the naked eye they only appeared to be marks or bruises; hospital personnel were only able to determine the extent of the child's internal injuries after multiple X rays and blood tests were performed; and the internal injuries that caused the child's death were only detected upon the medical examiner's internal inspection of the child's remains during the postmortem examination. Further, while the evidence established that the child's death resulted from trauma to the head, the medical examiner was unable to pinpoint precisely when the trauma was inflicted upon the child. He could only opine that the fatal injuries were sustained within four days prior to his death (which occurred on November 14, 2007).

      85

      While the evidence adduced at trial established that defendant was aware of a risk of abuse to her son, the prosecution did not meet its burden of establishing defendant's awareness and conscious disregard of a substantial and unjustifiable risk of her son's death. There was no evidence to establish at what point 367*367 during the stated 45-day period defendant actually perceived that her child was exposed to a substantial and unjustifiable risk of death. We know from the unchallenged dismissal of the reckless manslaughter count under count six of the indictment that the jury could not rationally find that defendant perceived this risk during the last three days of her son's life, the last three days of the stated 45-day period. We further know from the dismissal of count six that the jury could not rationally find that defendant perceived this risk when during the three days covered by that count she left her child in Flint's care when she left for work. Nor was there evidence that defendant would have disregarded a substantial and unjustifiable risk to her child's life even had one been apparent. Her actions — on November 12 and 13, 2007 — with respect to her child — i.e., attempting to treat him with over-the-counter medications, feeding and playing with him, checking on him throughout the night, and when it became apparent that his condition worsened, calling 911 and taking him to the hospital — belie the allegation that she would have consciously disregarded a substantial and unjustifiable risk to her child's life.

      86

      Moreover, the evidence adduced by the prosecution did not prove that defendant was aware that Flint's abusive conduct created a risk that defendant's child would die without prompt medical treatment (see Wong, 81 NY2d at 608). As stated supra, it was not possible for defendant to know that the injuries sustained by her child were life-threatening or could contribute to his death. Further, there was no proof demonstrating that defendant's acts (of leaving the child with Flint) or omissions were a sufficiently direct cause of the child's death (see Stewart, 40 NY2d at 697).

      87

      In upholding defendant's reckless manslaughter conviction, the majority concludes that the jury could logically find, based on the evidence adduced at trial, that defendant knew a substantial and unjustifiable risk of death existed and consciously disregarded it (see majority op at 357). But, in support of the inference it claims the jury could make, the majority points to evidence of defendant's awareness of a risk of physical abuse, not death. Stated differently, the majority, without support, equates knowledge of a risk of physical abuse with knowledge of a risk of death. In effect, the majority has held that once a parent is aware his/her child has been physically abused by someone with whom they regularly leave the child, even where the abuse occurs outside the presence of the parent, and even 368*368 where any injuries sustained appear to be superficial, that parent may be held criminally liable for reckless manslaughter if the child dies at the hands of the abusive caregiver. Such a ruling marks an unwarranted departure from our jurisprudence and a drastic diminution of the proof required to make out reckless manslaughter in a case involving a passive defendant parent. Indeed, the majority's holding appears to read the very stringent direct causation requirement out of the reckless manslaughter statute in cases involving passive defendant parents.

      88

      For the foregoing reasons, I would modify by dismissing count seven of the indictment charging reckless manslaughter and by dismissing count eight of the indictment charging reckless endangerment.

      89

      Order, insofar as appealed from, modified, etc.

    • 5.8 People v. Barboni

      1
      21 N.Y.3d 393 (2013)
      2
      994 N.E.2d 820
      3
      971 N.Y.S.2d 729
      4
      THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
      v.
      JAY J. BARBONI, Appellant.
      5
      No. 102
      6

      Court of Appeals of New York.

      7
      Argued April 25, 2013.
      8
      Decided June 11, 2013.
      9

      395*395 Davison Law Office PLLC, Canandaigua (Mary P. Davison of counsel), for appellant.

      10

      396*396 Gregory S. Oakes, District Attorney, Oswego, for respondent.

      11

      Chief Judge LIPPMAN and Judges GRAFFEO, READ and RIVERA concur with Judge PIGOTT; Judge SMITH concurs in result in an opinion; Judge ABDUS-SALAAM taking no part.

      12

       

      13
      397*397 OPINION OF THE COURT
      14

       

      15

      PIGOTT, J.

      16

      On this appeal, we are called upon to address the impact of this Court's recent jurisprudence concerning depraved indifference to human life, where defendant is accused of repeatedly striking a victim less than 11 years old and failing to summon medical assistance before the child dies. In this case we hold that there was sufficient evidence to convict defendant of depraved indifference murder as well as first-degree manslaughter. We also conclude that County Court committed no reversible error and that defendant's right to effective assistance of counsel was not violated.

      17

       

      18
      I.
      19

       

      20

      The facts pertinent to this appeal are as follows. Shortly after 8 p.m. on August 18, 2008, the mother of a 15-month-old boy received a telephone call from her boyfriend, defendant Barboni. Barboni, who had been alone with the child since around 4:45 p.m., told her, in what was described as a calm tone of voice, that she needed to come home because the child was not breathing. The mother rushed home to find her son in his crib, badly bruised, and unconscious. Defendant denied knowing what had happened. The child was pronounced dead at a nearby hospital shortly thereafter.

      21

      Defendant was interviewed that night at the police station. He had no explanation for the child's death, and could not 398*398 account for reddish stains that the police observed on his clothing. At approximately 1:20 a.m., an attorney called the police station, and questioning stopped. The attorney spoke with defendant, and then with the investigator, who asked for defendant's clothes. Both the attorney and defendant consented, and the clothing was then subjected to forensic analysis.

      22

      Defendant was arrested and charged with murder in the second degree (Penal Law § 125.25 [4]) and manslaughter in the first and second degrees (Penal Law §§ 125.20 [4]; 125.15 [1]). As part of his omnibus motion, submitted by new defense counsel, defendant sought suppression of the clothing taken from him at the station house, arguing that the seizure violated his right to counsel. Following a hearing, County Court denied the motion, reasoning that the police legitimately concluded that defendant was acting on the advice of counsel when he consented to the seizure of his clothing. Defendant then proceeded to a jury trial in County Court.

      23

       

      24
      II.
      25

       

      26

      During voir dire, one prospective juror indicated that he was unsure whether he would apply a different, more favorable standard with respect to the credibility of testimony by police officers when it directly conflicted with civilian testimony. Neither the prosecution nor the defense challenged this prospective juror for cause. When County Court asked the attorneys to state their peremptory challenges, defense counsel displayed a moment's uncertainty concerning whether this prospective juror had already been challenged. Informed that he was still unchallenged, counsel said, "Then we are fine ... we are going to keep him. I'm sorry, I got my people mixed up." County Court reminded counsel that the prospective juror was the one who "was unsure." "I know that," counsel responded, "I wanted to keep him. I just confused myself." The prospective juror was seated and served throughout the trial.

      27

      At trial, the jury heard evidence from three police officers regarding their questioning of defendant and his inability to explain the stains on his clothing. Forensic scientists testified that the stains on defendant's clothing were positive for blood, and that the blood matched the child's DNA.

      28

      The jury heard extensive testimony concerning the autopsy. A medical examiner testified that the child had approximately 25 "fresh" injuries, including two "clusters" of injuries to the face. The child had suffered four distinct skull fractures. The 399*399 examiner opined that the child's injuries had been caused by "blunt force trauma," involving a minimum of "five strikes" or "impacts."

      29

      An ocular pathologist, who had examined the child's eyes during a postmortem examination, testified that his eye injuries were consistent with "vigorous shaking with or without impact." Significantly, a neuropathologist, who had examined the child's brain and spinal cord, opined that he had survived for approximately two hours following onset of the trauma.

      30

      The defense called a pediatrician, who was unable to give a precise time as to when the injuries had occurred, but testified that a neuropathologist would be in a better position to do so. The pediatrician opined that signs of the child's extensive bruising would have been recognizable "[w]ithin a half hour" of the traumatic injury, and that he would have been in a substantial amount of pain and probably crying, screaming, or else "lethargic."

      31

      Finally, an anatomic pathologist was called by the defense. He opined that the interval between the child's injuries and death was at least two hours; like the pediatrician, he testified that a neuropathologist would be in a better position to give an estimate.

      32

      Defendant moved, unsuccessfully, for a trial order of dismissal on all counts. With respect to depraved indifference murder, defense counsel claimed that the People were obliged, but had failed, to prove "that the child was ... likely to die or that the attack was prolonged." He also argued that, if there was sufficient evidence of any type of murder, it could not be depraved indifference murder, because defendant's conduct was "in essence, intentional, not reckless."

      33

      Following deliberations, the jury found defendant guilty of one count each of murder in the second degree (Penal Law § 125.25 [4] [depraved indifference murder of a child]) and manslaughter in the first degree (Penal Law § 125.20 [4] [intent to cause child physical injury; recklessly causes child's death]).

      34

       

      35
      III.
      36

       

      37

      Defendant appealed the judgment of conviction, alleging insufficiency of the evidence on both counts, ineffective assistance of counsel, and error as to the suppression motion. The Appellate Division affirmed, holding that the evidence was legally sufficient to establish the mens rea elements necessary for 400*400 depraved indifference murder, noting that "the child's suffering yielded an apathetic response from defendant," who "did not seek medical assistance for him" (90 AD3d 1548, 1549 [4th Dept 2011]). It also ruled that there was legally sufficient evidence to support the first-degree manslaughter conviction. As to the claimed ineffective assistance of trial counsel, the Court held that defendant had failed to establish the absence of a legitimate explanation for defense counsel's alleged error during jury selection. Finally, as to suppression of defendant's clothing, the Court determined that there was no error, because defendant and his then attorney had consented to the seizure. Moreover, defendant had not been denied effective assistance of counsel during his questioning by the police.

      38

      A Judge of this Court granted defendant leave to appeal. We now affirm.

      39

       

      40
      IV.
      41

       

      42

      A person is guilty of depraved indifference murder of a child, under Penal Law § 125.25 (4), when "[u]nder circumstances evincing a depraved indifference to human life, and being eighteen years old or more the defendant recklessly engages in conduct which creates a grave risk of serious physical injury or death to another person less than eleven years old and thereby causes the death of such person." Defendant argues that the evidence was legally insufficient to establish circumstances evincing a depraved indifference to human life or that he recklessly engaged in conduct that created a grave risk of death or serious physical injury to the child.

      43

      This appeal is governed by the requirement that, in proving the existence of "circumstances evincing a depraved indifference to human life," the People must show that, at the time the crime occurred, defendant had a mens rea of "utter disregard for the value of human life" (People v Feingold, 7 NY3d 288, 296 [2006], quoting People v Suarez, 6 NY3d 202, 214 [2005]). Put simply, the People must prove that defendant did not care whether his victim lived or died (see People v Matos, 19 NY3d 470, 476 [2012]; People v Lewie, 17 NY3d 348, 360 [2011]; Feingold, 7 NY3d at 296). Additionally, the People must prove a second mens rea, namely recklessness. Under Penal Law § 125.25 (4), this element is recklessness as to a grave risk of serious physical injury or death.

      44

      In two recent cases, which, like this one, involved a very young victim, this Court held that the evidence was insufficient to 401*401 prove the mens rea of wanton indifference. The first of those cases was People v Lewie, where we vacated a conviction for reckless endangerment in the first degree (Penal Law § 120.25), which contains the same two mens rea elements as depraved indifference murder. Lewie persistently left her eight-month-old son alone with her boyfriend, whom she knew to be violent and cruel, and the man inflicted numerous injuries on the child, finally causing a brain injury that led to his death. We reasoned that the evidence was insufficient to support the conclusion that Lewie "did not care at all" about her child's safety (Lewie, 17 NY3d at 359).

      45
      "On the contrary, the evidence shows that defendant feared the worst and ... hoped for the best. A witness ... testified that defendant seemed `worried,' and no witness's testimony points to a contrary finding.... [Defendant's] statement that she `was scared' and `never knew what she was going to go home to' shows that she was fearful of harm to her baby, not that she was indifferent to the possibility" (id.).
      46

      Then, in People v Matos (19 NY3d 470 [2012]), this Court dismissed a depraved indifference murder count against a woman whose intimate partner severely beat her 23-month-old son, resulting in his death. The Court held that "the People failed to prove that [the mother] did not care whether her son lived or died" (19 NY3d at 476), given the evidence that she splinted her son's leg, gave him anti-inflammatory medication, exhibited other measures to comfort him, and, when she found him bleeding and unresponsive, called 911 for help.

      47

      Defendant concedes that his case is factually distinct from Lewie and Matos in that his indictment required the jury to find that he was the actor who had inflicted the injuries that resulted in the child's death. But this difference, he argues, should not alter the analysis; the evidence was insufficient to establish the mens rea of depraved indifference in his case, just as it was lacking in Lewie and Matos. We disagree.

      48

      Here, viewing the evidence in the light most favorable to the People, as we must, the jury heard testimony—including medical and forensic proof—that defendant inflicted injuries on a 15-month-old child by striking or shaking the child so brutally as to cause four distinct skull fractures. The nature of defendant's assault on the child rendered his course of conduct more clearly depraved than had he only suspected that a third party had 402*402 injured the child. Knowing the brutal origin of the injuries and the force with which they were inflicted makes it much less likely that defendant was holding out hope, as Lewie and Matos perhaps were, that the child's symptoms were merely signs of a trivial injury or illness. Thus, contrary to defendant's contention, it is significant that defendant was the actor who had inflicted the injuries in the first place.

      49

      Defendant also argues that the People did not prove that his state of mind at the time that the child was injured was one of depraved indifference to human life. He argues that it is, for example, consistent with the evidence presented that he experienced a fit of rage in which he repeatedly struck the child. In such a scenario, his state of mind might better be described as blind anger, rather than wanton indifference. However, the charge of depraved indifference murder here is comprised of more than the physical assault on the child; it also encompasses defendant's inaction for the two hours that elapsed between the injuries and death. In light of the child's vulnerability and utter dependence on a caregiver, defendant's post-assault failure to treat the child or report his obvious injuries must be considered in assessing whether depraved indifference was shown. The People demonstrated that defendant, at the very least, left the child unattended for two hours, either disregarding, or not bothering to look for, obvious, perceptible signs that the child was seriously injured. Given defendant's knowledge of how the injuries were inflicted and his failure to seek immediate medical attention, either directly or via consultation with his girlfriend, until it was too late, there was sufficient evidence for a jury to conclude that defendant evinced a wanton and uncaring state of mind. His dispassionate voice on the telephone, reporting that the child was not breathing, is further, albeit circumstantial, evidence of this callous indifference to the child's life.

      50

      Defendant further contends that insufficient evidence was presented to support the prosecution's theory that he "engaged in a brutal and prolonged and ultimately fatal course of conduct" against the child. He contrasts his own actions with those underlying People v Best (85 NY2d 826 [1995] [defendant repeatedly beat her nine-year-old son, inflicting large open wounds through which bacteria entered, eventually causing his death]) and People v Poplis (30 NY2d 85 [1972] [defendant caused the death of a 3½-year-old child by repeatedly beating her over a course of several days]). Defendant points out that the evidence presented in this case, in contrast to those, is consistent with an attack that was of short duration.

      51

      403*403 The language of the prosecution theory originates in this Court's decision in Suarez (6 NY3d at 212). There, the Court set out the "few rare circumstances" in which a defendant may be convicted of depraved indifference murder based on conduct that endangers only one person. The Court outlined two recurring fact patterns—"abandon[ing] a helpless and vulnerable victim in circumstances where the victim is highly likely to die" and "engag[ing] in torture or a brutal, prolonged and ultimately fatal course of conduct against a particularly vulnerable victim" (id. at 212). However, the Court, in noting the existence of "other extraordinary cases" (id. at 213), accepted that these fact patterns did not constitute an exhaustive list of situations in which a defendant may properly be convicted of depraved indifference murder based on a one-on-one killing.[1] The standard is whether the People have shown that defendant's state of mind was one of utter disregard for the value of human life. Here, the People met this standard because the horrific nature of defendant's assault of the child was clearly intended to be encompassed within the depraved indifference murder of a child statute, and the jury could properly find defendant guilty of that crime even if the murderous acts did not occur over an extended duration.

      52

      A brutal course of conduct against a vulnerable victim occurring over a prolonged or extended period of time is more likely to be associated with the mental state of depraved indifference to human life than brutality that is short in duration and is not repeated. This is because the actor had the opportunity to regret his actions and display caring, but failed to take the opportunity. In the present case, defendant argues that his course of conduct against the child was not prolonged. But defendant's argument focuses exclusively on the duration of his physical assault on the child, which may have been brief. However, this argument ignores the evidence that, by his later inaction—his failure, over some two hours, to seek medical attention for the child—defendant 404*404 turned a brutal assault into a brutal and prolonged course of conduct against a vulnerable victim.[2] There is no requirement in our case law that a violent course of conduct must occur over days or months, in order to be "prolonged."

      53

      We conclude that, viewing the facts in a light most favorable to the People, a rational jury could have found beyond a reasonable doubt that defendant's state of mind was one of utter indifference to the value of human life.

      54

       

      55
      V.
      56

       

      57

      Defendant's final challenge specific to his murder conviction is that the evidence was insufficient to prove the second mens rea element of depraved indifference murder of a child: recklessness as to a grave risk of serious physical injury or death. Defendant argues that the evidence, such as the multiple skull fractures inflicted on the child, is consistent only with the conclusion that the person who inflicted the child's injuries "acted intentionally," and therefore a conviction of depraved indifference murder cannot stand. We disagree.

      58

      It may be true that the evidence presented to the jury leads inexorably to the conclusion that the perpetrator acted voluntarily in his course of conduct against the child. However, it does not show that he intended to cause death or serious physical injury, in the sense of having that as a conscious objective or purpose. Defendant did not use a weapon, nor was there any evidence that defendant tried to smother the child—acts that of themselves tend to imply intent to cause death or serious physical injury. The extensive injuries suffered by the child are explicable in light of his tender age and do not in themselves require the conclusion that the perpetrator intended to cause serious physical injury or death. The present case is therefore clearly distinguishable from those in which the Court has had occasion to note that "a one-on-one shooting or knifing (or similar killing) can almost never qualify as depraved indifference murder" (Suarez, 6 NY3d at 211-212, quoting People v Payne, 3 NY3d 266, 272 [2004]).

      59

      In short, there was no evidence that would have compelled the jury to infer that defendant's state of mind was one of intent 405*405 rather than recklessness with respect to the risk of the child's death or serious physical injury. By contrast, the jury could have rationally found beyond a reasonable doubt that defendant consciously disregarded the substantial and unjustifiable risk that death or serious physical injury would result, in a manner that constituted a gross deviation from the standard of conduct that a reasonable person would have observed (see Penal Law § 15.05 [3] [definition of "recklessly"]).

      60

       

      61
      VI.
      62

       

      63

      Defendant next argues that the evidence was legally insufficient to prove beyond a reasonable doubt that he had the requisite mens rea of "intent to cause physical injury to a person less than eleven years old," required for conviction of manslaughter in the first degree (Penal Law § 125.20 [4]).

      64

      "A jury is entitled to infer that a defendant intended the natural and probable consequences of his acts. The element of intent is rarely proved by an explicit expression of culpability by the perpetrator; and competing inferences to be drawn regarding the defendant's intent, if not unreasonable, are within the exclusive domain of the finders of fact, not to be disturbed" by the Court of Appeals (People v Bueno, 18 NY3d 160, 169 [2011] [internal quotation marks, citations, and brackets omitted]). Here, the jury could have rationally inferred that defendant intended to injure the child, because physical injury is the probable consequence of inflicting "blunt force trauma" on a young child. Consequently, the evidence of first-degree manslaughter was sufficient.

      65

       

      66
      VII.
      67

       

      68

      Procedurally, defendant contends that the failure of his trial attorneys to challenge the prospective juror who was unsure whether he would give more weight to a police officer's testimony amounted to ineffective assistance of counsel. He relies on People v Turner (5 NY3d 476 [2005]), and claims that trial counsel, though otherwise competent, committed "a single failing" that was "so egregious and prejudicial as to deprive [him] of his constitutional right" to the effective assistance of counsel (Turner, 5 NY3d at 480 [internal quotation marks omitted]; see also e.g. People v Brown, 17 NY3d 742, 743-744 [2011]).

      69

      It is well settled that "[t]o prevail on a claim of ineffective assistance of counsel, it is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations 406*406 for counsel's failure .... Absent such a showing, it will be presumed that counsel acted in a competent manner and exercised professional judgment" (People v Rivera, 71 NY2d 705, 709 [1988]). The burden is on the defendant to show that there was no legitimate explanation for defense counsel's alleged error. We must decide whether, "[v]iewed objectively, the transcript and the submissions reveal the existence of a trial strategy that might well have been pursued by a reasonably competent attorney" (People v Satterfield, 66 NY2d 796, 799 [1985]).

      70

      Defendant points to the fact that defense counsel said on the record that she was "mixed up" and "confused" about whether a prospective juror had been challenged, and he suggests that her failure to challenge therefore cannot have been a matter of strategy. However, the record shows that counsel was only fleetingly confused, in that she thought for a moment that the prospective juror had already been removed, and then quickly regained herself. Counsel then recalled that the prospective juror was one she wished to keep, even though she knew that he had said he was unsure whether he would apply a different standard for judging the credibility of a police officer's testimony, if it conflicted with civilian testimony.

      71

      Defendant also argues that there cannot be a legitimate explanation for failing to challenge a prospective juror who is not sure whether he would apply a different standard for the credibility of police officers. We disagree. A defense counsel may legitimately decide not to challenge a prospective juror in such circumstances because the prospective juror is attractive to the defense in other respects, which outweigh his or her willingness to attach more credibility to police officers' testimony when it directly contradicts civilian testimony. This is particularly likely in a case, such as this one, where there was no expectation of a conflict between the police officers' and civilians' testimony, such that defense counsel would seek to undermine police testimony. "The record does not reveal on what basis counsel might have concluded that" the prospective juror was a "desirable juror[] for the defense, and that further inquiry was unnecessary. In particular, counsel may have been influenced by the[] juror['s] demeanor, which is not reflected in the record" (People v Vilfort, 33 AD3d 368, 369 [1st Dept 2006]). Demeanor may include such entirely nonverbal cues as eye contact and posture. In addition, trial counsel may have considered the prospective juror to be beneficial to the defense on the basis of his 407*407 jury questionnaire. Importantly, the record does not show a substantial risk that the prospective juror would not properly discharge his responsibilities, nor does it cast doubt on his ability to be fair. In sum, defendant's ineffective assistance argument fails because he does not meet his burden of showing the absence of a legitimate explanation for the perceived error.

      72

       

      73
      VIII.
      74

       

      75

      Finally, defendant argues that County Court erred in denying his motion to suppress the clothing that was seized from him. He frames the argument in terms of ineffective assistance of counsel; County Court, he says, should have granted the motion on the basis that the attorney who consented to the seizure of defendant's clothing was ineffective. Defendant acknowledges our holding in People v Claudio (83 NY2d 76 [1993]) that, "except in most unusual circumstances ... the State is not charged with the responsibility of guaranteeing effective legal representation upon the entry of counsel at the preaccusatory, investigatory stage of a criminal matter, i.e., before the commencement of formal adversarial judicial criminal proceedings" (id. at 78), but urges us to overrule Claudio.

      76

      The present case does not require us to decide whether Claudio is still good law, because we agree with the Appellate Division that "[e]ven assuming arguendo, that the right to effective assistance of counsel attached prior to the seizure of the physical evidence in question and that suppression is the appropriate remedy where a seizure arises from ineffective assistance of counsel," defendant "failed to demonstrate the absence of a strategic explanation for that attorney's alleged shortcomings" (90 AD3d at 1550, quoting People v Carncross, 14 NY3d 319, 331 [2010] [ellipsis and brackets omitted]).

      77

       

      78
      IX.
      79

       

      80

      Accordingly, the order of the Appellate Division should be affirmed.

      81

      SMITH, J. (concurring).

      82

      I concur in the result the majority reaches, but not in its reasoning. I do not think this case fits with our depraved indifference jurisprudence as it has developed over the last decade. Rather, I think that a case like this—a severe beating that killed an infant—is a justified, narrow exception to the rule established by our recent cases that a depraved indifference murder conviction cannot be sustained unless a 408*408 jury could find, beyond a reasonable doubt, that the defendant was literally indifferent to whether the victim lived or died.

      83

      This is the first case since People v Sanchez (98 NY2d 373 [2002]) in which we have found the evidence sufficient to support a jury finding of depraved indifference to human life. In the interim, we have found insufficient evidence of depraved indifference in 17 cases,[*] and have overruled Sanchez and People v Register (60 NY2d 270 [1983]) (see People v Feingold, 7 NY3d 288, 295-296 [2006]). We have decided in three recent cases that neither a brutal, fatal assault (People v Bussey, 19 NY3d 231 [2012]) nor a reckless failure to protect or get help for an abused child (People v Lewie, 17 NY3d 348 [2011]; People v Matos, 19 NY3d 470 [2012]) is proof of depraved indifference.

      84

      This case is different from those three because in Bussey the victim was an adult, and in Lewie and Matos the defendants were not the people who physically abused the children. I agree with the majority that these differences justify a difference in result. While Bussey, Lewie and Matos were guilty of "shocking behavior [which] in ordinary speech people might call ... `depraved'" (Lewie, 17 NY3d at 359), the depravity in a crime like this is of a different order. An assault against a young child is immeasurably worse than an assault against an adult, both because the child is so much more vulnerable and because the child could have done nothing to provoke the offense. And the offender who actually beats the child commits a much worse offense than one who only fails to prevent the beating or to forestall its consequences. If ever there was conduct

      85
      "so wanton, so deficient in a moral sense of concern, so devoid of regard of the life or lives of others, and so blameworthy as to warrant the same criminal liability as that which the law imposes upon a person who intentionally causes the death of another"
      86

      (People v Suarez, 6 NY3d 202, 211 [2005], quoting earlier cases), the conduct of this defendant is it.

      87

      409*409 Still, there is a problem. Under our recent cases, the depraved indifference statutes are not an invitation for juries and judges to make moral judgments about how bad the conduct was in each particular case. We have insisted on a narrow, literal reading of "depraved indifference":

      88
      "Our cases make clear that the word `indifference' is to be taken literally: `depraved indifference is best understood as an utter disregard for the value of human life—a willingness to act ... because one simply doesn't care whether grievous harm results or not'" (Lewie, 17 NY3d at 359, quoting earlier cases).
      89

      I find it hard to see how this defendant was any more indifferent to whether the victim lived or died than the defendant in Bussey was. Bussey establishes that we would not uphold a depraved indifference murder conviction on facts like the ones before us if the victim were an adult; yet the age of the victim hardly seems relevant to the question of whether the defendant was indifferent to the victim's fate. As the majority opinion shows, the strongest evidence of indifference in this case is in defendant's callous behavior in the hours between the assault and the child's death. But Matos establishes that we would not uphold the depraved indifference murder conviction of a defendant who reacted with equal callousness to child abuse that someone else had committed. I disagree with the heavy emphasis that the majority puts on defendant's post-assault behavior (cf. Suarez, 6 NY3d at 210 [depraved indifference should be decided "irrespective of what the actor does or does not do after inflicting the fatal injury"]). I think the evidence on that subject was relevant here, but I also think there was sufficient evidence without it to sustain the conviction. I would say that anyone who beats a baby to death in the way that this defendant did could be found to be a murderer, even if the assault was immediately followed by tears of remorse.

      90

      I conclude that the extraordinary evil of this kind of crime— severe, fatal abuse of a young child—warrants an exception to the rule of Lewie that "the word `indifference' is to be taken literally." I am fortified in this conclusion by the legislature's recognition in the text of the murder statute that child abuse is in a class by itself. The broader depraved indifference murder statute, Penal Law § 125.25 (2), applies to a person who "[u]nder circumstances evincing a depraved indifference to human life ... recklessly engages in conduct which creates a 410*410 grave risk of death to another person." But this defendant was prosecuted under Penal Law § 125.25 (4), applicable to one who "[u]nder circumstances evincing a depraved indifference to human life, and being eighteen years old or more ... recklessly engages in conduct which creates a grave risk of serious physical injury or death to another person less than eleven years old" (emphasis added). Thus the legislature clearly intended to make child abusers punishable for murder when their victims died, even where the risk that they recklessly created was a risk of something less than death; the idea that "depraved indifference" can only exist when a defendant does not care whether the victim lives or dies seems incompatible with that intention.

      91

      I also find support for the application of the statute to this case in our decision in Suarez. There, we said that "[t]wo fact patterns have recurred" under the depraved indifference murder statute (6 NY3d at 212). One of those consists of defendants who engage "in torture or a brutal, prolonged and ultimately fatal course of conduct against a particularly vulnerable victim" (id.). Defendant argues here that his case does not fit this category because his brutality was not "prolonged," but the argument misses the point; the Suarez categories are not the only possible kinds of depraved indifference murder. More relevant is Suarez's recognition that maltreatment of a "particularly vulnerable victim" is an important factor in deciding whether the statute applies. Logically, the vulnerability of the victim may not justify an inference that the perpetrator was literally indifferent between life and death; but the moral enormity of a crime against such a victim does justify a less literal reading of the statute in this narrow class of cases.

      92

      Order affirmed.

      93

       

  • 6 People v. Sepe

    1

    111 A.D.3d 75 (2013)
    972 N.Y.S.2d 273

    2
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
    v.
    ROBERT SEPE, Appellant.

    2009-08248, Ind. No. 08-00457.

    3

    Appellate Division of the Supreme Court of New York, Second Department.

    Decided September 25, 2013.

    4

    [76] The Sarcone Law Firm, PLLC, White Plains (John A. Sarcone III and Clement S. Patti, Jr., of counsel), for appellant.

    5

    Janet DiFiore, District Attorney, White Plains (Lois Cullen Valerio, Richard Longworth Hecht and Laurie Sapakoff of counsel), for respondent.

    6

    DICKERSON and AUSTIN, JJ., concur with COHEN, J.; ANGIOLILLO, J.P., dissents in a separate opinion in which BALKIN, J., concurs.

    7
    OPINION OF THE COURT
    8

     

    9
    COHEN, J.
    10

    During the early morning hours of March 22, 2008, the defendant beat his girlfriend to death with a baseball bat inside the home they shared in Croton-on-Hudson, New York. At trial, the defendant relied on the affirmative defense of extreme emotional disturbance, presenting evidence that he had a long history of psychiatric illness, and that in the months leading up to the homicide, his mental state deteriorated as his once successful business faced financial setbacks, and anxiety kept him from sleep. The defendant was also experiencing a great deal of [77] stress over the prospect of hosting a large family dinner for the upcoming Easter holiday, and he claims that he reached his breaking point and lost control of his actions when his girlfriend rebuffed his suggestion that they cancel the planned gathering. There is no indication that the defendant had ever committed any prior acts of violence against his girlfriend, and his girlfriend's teenaged daughter testified that the defendant and her mother loved each other and were discussing marriage. At the conclusion of the trial, the jury rejected the proffered extreme emotional disturbance defense, and convicted the defendant of murder in the second degree. The defendant appeals, arguing that the jury's failure to accept his defense of extreme emotional disturbance in mitigation of his conduct in killing his girlfriend, and accordingly reduce the degree of his conviction to manslaughter in the first degree, was against the weight of the evidence.

    11

    For the reasons that follow, we conclude that the defendant sustained his burden of proving, by a preponderance of the evidence, that he was acting "under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse" (Penal Law §§ 125.27 [2] [a]; 125.25 [1] [a]) when he killed his girlfriend, and that the jury's failure to reduce the degree of his conviction to manslaughter in the first degree was against the weight of the evidence.

    12

    During the course of the jury trial conducted in the spring of 2009, the defendant presented extensive evidence of his background, his history of treatment for depression and anxiety, and his mental state prior to and at the time of the homicide through his own testimony, the testimony of his treating psychiatrist, and the testimony of several family members. According to the accounts of the defendant's background given at trial, he took his first steps toward becoming a successful entrepreneur as a young man. In May 1976, when the defendant was just 21 years old, he started his own business, selling health products in a local gymnasium in the Bronx. After making a modest sum of money, he opened a small health food store. In 1978, the defendant married, and he and his wife had three children. Eventually, the defendant sold his health food store and started a health products distribution business in the Bronx. As the business grew more successful, the defendant moved the company to a larger facility and increased the product line. During the early 1980s, the company's distribution and sales increased to about $500,000 a year, and at its peak, in the late 1980s and early 1990s, the company grossed approximately $1.5 million annually.

    13

    [78] In 1993, 15 years before the tragic incident, the defendant began weekly psychotherapy sessions with a psychiatrist. His treating psychiatrist testified that the defendant presented with a history of depression and a long history of anxiety and panic disorder that would manifest itself in panic attacks, an extreme form of anxiety during which the patient experiences an inability to breathe and heart palpitations. Although the defendant initially wanted to avoid taking medication for his mental health problems, he eventually agreed to take an antidepressant prescribed by the psychiatrist. The psychiatrist testified that the defendant was "insecure" and that his defense against "massive insecurity" was to be "perfect," which made it hard to ever admit that he was wrong.

    14

    By 2003, the defendant and his wife were "separated," but still living in the same house. The defendant met Jeanette Carlucci, the victim, online in May 2003, and they eventually started dating. In April 2005, the defendant and Carlucci took a seven-month "hiatus" from their relationship. During that period, the defendant's wife moved out of the marital home. The defendant's relationship with Carlucci then progressed, and they started talking about marriage and even placed a deposit on an engagement ring. Carlucci's teenaged daughter, who split her time between her mother's home and her biological father's home, never saw her mother and the defendant fight, and believed that her mother and the defendant loved each other.

    15

    The defendant's business suffered a downturn in 2006, when two raw ingredients used in two of his best-selling products started to increase in cost. The defendant did not raise prices, hoping the cost would go back down. As a result, the defendant's business began to have cash flow problems.

    16

    The defendant's divorce from his wife was finalized in August 2007. Later that year, in October 2007, Carlucci woke the defendant up from a nap because he was gasping for air. The defendant noticed that his heart was racing. After engaging in research on the internet, the defendant diagnosed himself as suffering from sleep apnea.

    17

    In the months leading up to Carlucci's death, the defendant faced additional pressure stemming from business difficulties, and continued to experience problems with sleeping. During this period, his mental health also markedly deteriorated. In December 2007, the possibility of a potential lawsuit against the defendant and his company was looming. The defendant had conversations with the principal of the other company involved [79] about a possible settlement, but the claim eventually led to litigation. Somehow, the defendant became convinced that the principal of the plaintiff company was involved in organized crime, and he became "fixated" on the idea that his earlier conversations with the principal had been tape-recorded. The defendant became highly distressed about the litigation. At a Christmas party later that month, the defendant talked to many people, including his sister and brother-in-law, both physicians, about his lack of sleep.

    18

    Shortly thereafter, in January 2008, Carlucci moved into the defendant's house in Croton-on-Hudson. However, the defendant slept in the master bedroom upstairs, and Carlucci slept in a separate bedroom downstairs, because they were not married and wanted "to set a good example" for their children. At about this same time, the defendant began seeing his psychiatrist twice weekly due to his increased anxiety, including his fear that he would choke and die in his sleep. He was also anxious due to the pending litigation and because his cash flow was poor. The defendant's psychiatrist believed that his sleeping difficulties were the result of panic attacks and adjusted the defendant's medication. Although the psychiatrist noted that sleep disturbance was "one of the cardinal symptoms of depression," he nevertheless referred the defendant to another doctor for a sleep evaluation. According to the defendant, the doctor he was referred to did not believe that he suffered from sleep apnea, but wanted to conduct a sleep study to be certain. However, the defendant injured his back while lifting weights on January 7, 2008, and could not participate in the sleep study because he was unable to lie on his back.

    19

    The defendant's adult children noticed changes in his behavior during the early part of 2008. The defendant's son, who worked with the defendant at the company, noticed a decline in both the amount of work the defendant was performing for the company, and the quality of the work performed. The son also noticed that the defendant was depressed, often tired, was having sleeping problems, and was "obsessed" about the lawsuit. The defendant's daughter noticed that her father was more tired and emotional than usual. The defendant would cry and tell her that he loved her.

    20

    The defendant testified that in February 2008, he was still having trouble sleeping and was still concerned that the principal of the plaintiff company in the lawsuit was involved in organized crime. Despite the fact that Carlucci had moved in [80] with him, he also approached his now former wife and asked her to take him back.

    21

    The defendant's downward spiral continued throughout the month of February 2008. On February 29, 2008, the defendant was very distressed, and he called his sister and expressed to her that he could not "take this anymore, ... the anxiety is intolerable. I can't think, I can't sleep, I can't do anything. I am in bed most of the time ... please help me." Following this call, the defendant met with his sister, and told her about his anxiety, depression, obsession about organized crime invading his business concerns, money problems, and medication.

    22

    The next morning, March 1, 2008, approximately three weeks before the homicide, Carlucci, the defendant's sister, and the defendant's brother-in-law took the defendant to the Westchester Medical Center's psychiatric emergency center. He was admitted and spent the night, sleeping five straight hours, but insisted on going home the next day. He continued to attend sessions with his psychiatrist. The defendant would talk to his sister two or three times a day.

    23

    On March 7, 2008, the defendant advised the attorney representing him in the litigation by fax to "Please end this, we pay them" and "Thank you so very, very much, I owe you the world, God bless you." The faxed note also said,

    24

    "I must end this case since I have had health problems since October and as discussed with my physician, this is a big contributor to my health problems ... Once you settle it, it will take the weight of the world off my shoulders and let me rest and sleep better and come back to life."

    25

    Although the attorney settled the case, the defendant remained anxious about making the settlement payments.

    26

    Shortly thereafter, approximately one week before Easter, Carlucci raised the idea of hosting Easter dinner that year. Carlucci's daughter suggested that "both sides of the family" be invited to the gathering, which would be unusual, as "it was only always the Sepes." While initially hesitant, telling Carlucci he would prefer to go to his mother's house so he "wouldn't have to do anything at all," the defendant "got on board" because he "didn't want to disappoint" Carlucci, as she wanted to have her family over and he "hadn't been doing so many things." Thus, the defendant and Carlucci started to plan an Easter dinner for about 20 people. They decided to order food from a restaurant. Although the defendant usually did the ordering, Carlucci ordered the food for the planned gathering [81] because the defendant could not figure out how much to get. As the holiday approached, Carlucci began making all the preparations, including "cleaning the whole house," because the defendant "wasn't able to help her."

    27

    The defendant's anxiety about hosting the Easter dinner increased. However, the defendant continued to express excitement to his children and sister about hosting the dinner, while simultaneously feeling that if he canceled the party, he would disappoint Carlucci. The defendant testified that during this time, he "felt like [he] was just losing everyone." The defendant told his psychiatrist about his Easter plans and his feeling that he was "totally incapable of relating to people," and that it was causing him a "lot of stress." The psychiatrist suggested to the defendant that he cancel the Easter plans if he did not feel up to it. Even so, the psychiatrist thought that the defendant was "slightly better" and had "increased energy." The defendant testified that the next day, he discussed canceling the party with Carlucci. He explained that he was not only "worked up about the Easter dinner," but also "about everything; about the Mafia, about money, about so many different things. I am losing myself. Where is my personality? I felt like I was ... losing [Carlucci], my children," but he didn't want to disappoint Carlucci.

    28

    On Good Friday, March 21, 2008, the defendant called his sons to remind them about Easter dinner and also to discuss business. One of the sons testified that this was "one of the better days" for his father.

    29

    The defendant himself felt "a little bit better," that day, but experienced anxiety after some "light exercise." He and Carlucci decided to stay in for the night. At about 10:00 p.m., Carlucci got into her pajamas, and they laid down in her bed in her downstairs bedroom. The defendant fell asleep for a short while, but woke up when Carlucci's phone rang. At that point, he went upstairs to his bedroom and fell asleep.

    30

    Describing his actions immediately before and after the homicide, the defendant testified that he was woken from his sleep by a noise in the house. He grabbed the bat he kept under his bed for protection and went downstairs to look around. Certain that there were no intruders in the house, the defendant put down the bat and started pacing in the kitchen. He paced for "a couple of hours maybe, an hour and a half." He was "worked up" over hosting Easter dinner, the settlement of the lawsuit, and money.

    31

    At some point, Carlucci called out from her bedroom, "[W]hat are you doing." He went into the bedroom, with the bat, and [82] said, "I think we have to cancel the party." Carlucci replied, "in a normal tone," "are you crazy?" The defendant yelled, "[W]e can't do this anymore, I can't do this anymore, I can't do it anymore." It was then that he started hitting Carlucci with the bat. Carlucci jumped off the bed and ran out of the room. She said, "Robert, it's me." The defendant ran after her, then followed her back into the bedroom, where he hit her again.

    32

    The defendant's violent assault upon Carlucci is undisputed. Evidence presented by the People established that Carlucci's face, hands, left elbow, right forearm, right buttocks, left knee, and both feet bore evidence of blunt force trauma consistent with being struck multiple times by an aluminum baseball bat. The middle finger of her left hand was fractured and the tip of the finger was missing. One of the blows had been "severe enough to cut the fingertip off." The upper left arm area had "grab marks," and there were injuries to her palms which indicated that Carlucci had tried to defend herself. These injuries were sustained while Carlucci was still alive.

    33

    Carlucci had sustained a minimum of four blows to the skull consistent with being struck by an aluminum bat with "tremendous force." There were four lacerations to the back of the head, the "entire skull" was fractured, and the brain matter was eviscerated. There was no brain tissue left in the skull. She also sustained a broken nose, fractured jaw, multiple lacerations to her forehead, ears, and eyelids, and abrasions to her cheeks, chin, and mouth. These injuries were consistent with "bone matter from being struck in the back of the head" and with being struck while face down on the bedroom floor.

    34

    The testimony of the People's blood spatter expert confirmed that the attack began in Carlucci's bedroom, continued down the hall into the laundry room and bathroom, and then back into the bedroom. There were clumps of hair in the hallway and the bedroom. The bat found next to Carlucci was dented and covered in blood, and the blood spatter was consistent with her having been struck by the bat many times while being pursued. Aside from one bloody dent in the hallway wall, nothing was broken or out of place in the hallway, bathroom, laundry room, or bedroom.

    35

    After the attack, the defendant stood over Carlucci's body for a long time, "[t]hen [he] wanted to kill himself." He searched the term "jugular vein" on the internet and grabbed a knife, intending to cut his throat, but he could not go through with it. He put plastic bags over his head to suffocate himself, but it did [83] not work. He thought about dropping a weightlifting weight on his neck, but he was not sure it would be fatal. The defendant then went into the kitchen and put his bloody socks and shirt in the garbage can "and buried them down." He urinated into the garbage can and, because he was worried about priapism as a side effect of his medication, he masturbated into the garbage can. He got a drink from the refrigerator and took some pills.

    36

    The defendant put on a clean sweatshirt and left the house with a knife and $2,300 in cash. He started driving toward his time share property in upstate New York. One of the things he "was thinking of tremendously" was that his children would get to the house and see what had happened, but he did not turn the car around; rather, he threw his cell phone out the window.

    37

    After about three hours of driving, he got out of the car at an overpass. He stood on the overpass for a couple of hours, still contemplating suicide, before New York State Troopers arrived. He "wanted time to stand still," so he told the police that he was from the Bronx and had hitchhiked there. He talked to the Troopers about Italian food, the Bronx, weightlifting, and vitamins. He never mentioned Carlucci.

    38

    When asked "why [he] did what [he] did" to Carlucci, the defendant testified:

    39

    "The pressure of the party, I couldn't live anymore. It was an irrational, impossible event. The party was looming on my mind: How am I going to deal with these people, how am I going to handle all these people, I can't do it. As I am pacing back and forth, I am thinking of all my problems, all my stuff, and it's ridiculous.

    "I just lost—I don't know, I don't know how to explain it. I lost control. I don't know how to explain it. It's just so, so, so surreal. Anyone that knows me, anyone that knows me—it haunts me every single day. I don't understand it. I don't understand it.

    "It's just—I couldn't do this party, I couldn't do it. It was a party. Under normal circumstances, I could do 50 parties. I just couldn't talk to one person at that time, how am I going to talk to all these people? How am I going to do it? I am going to die. I can't do it, I will die. I can't, it's impossible."

    40

     

    41
    [84] The Testimony of the Psychiatric Experts
    42

    Both the defendant and the People offered the testimony of psychiatric experts at trial. The psychiatric experts differed as to the clinical significance of the defendant's psychiatric background and the defendant's actions during and immediately after the homicide.

    43

    The defendant's expert, Dr. Alan Tuckman, confirmed that the defendant's psychiatric history revealed that he had been treated for depression and anxiety for many years. Four to six months before the murder, the defendant's condition began deteriorating, and he became more and more depressed and anxious, withdrawn, obsessed that he would die from sleep apnea, and obsessed that there was an organized crime component to the lawsuit that had been brought against him and his company. Tuckman opined that the defendant was suffering from extreme emotional disturbance when he killed Carlucci. Tuckman testified that the defendant had no violent history but had serious psychiatric problems which weakened him, and that as the defendant became weaker emotionally and sicker, he felt guilty about divorcing his first wife, the mother of his children, and became unable to function. Tuckman opined that the defendant's emotionally weakened state probably triggered his explosion when Carlucci suggested that they could not cancel the Easter Sunday party.

    44

    Tuckman testified that the fact that after the homicide, the defendant went through the house, contemplating various ways to commit suicide, meant "nothing." "People after a murder do either obsessional things or disorganized things." The extreme emotional disturbance occurs at the time of the crime; what somebody does afterwards does not have any bearing on the crime. Tuckman also testified:

    45

    "[W]hat I have seen most of the time is people racing around afterwards going, oh, my God, oh, my God, oh, my God, oh, my God. That's what I have mostly seen. Oh, my God, what did I do, what happened, what did I do. They are no[w] exhausted with the adrenalin gone and just sitting down slumped."

    46

    According to Tuckman, a reflection of remorse for commission of the crime accompanies extreme emotional disturbance, and he believed that the defendant felt intense remorse. The defendant expressed his remorse by saying that the murder was an "impossible event." In Tuckman's opinion, remorse and denial were "the same thing."

    47

    [85] Tuckman acknowledged that the defendant "was lying" when he told the New York State Troopers that he had hitchhiked to the overpass. However, by that point the defendant was not under the influence of an extreme emotional disturbance.

    48

    In contrast, the People's expert, Dr. Angela Hegarty, found that the defendant's actions during and after the murder did not evince a loss of control. Opining that the defendant's mental state was "highly consistent with an anxiety disorder and highly consistent with a severe personality disorder, narcis[sis]tic personality disorder," Hegarty testified that there was no evidence of mania or psychosis. While the defendant was being treated for anxiety and panic, Hegarty concluded that at the time of the crime, the defendant was not suffering the effects of an extreme emotional disturbance to such extent that it would serve as a reasonable explanation or excuse for his crime. According to Hegarty, at the time of the crime, the defendant appreciated the nature and consequences of his actions and knew that his conduct was wrong.

    49

    As noted, at the conclusion of the trial, the jury rejected the defendant's extreme emotional disturbance defense, and convicted him of murder in the second degree.

    50

     

    51
    Analysis
    52

    At the outset, we note that the trial court, in addition to charging murder in the second degree, properly charged the affirmative defense of extreme emotional disturbance, affording the jury the option of returning a verdict of manslaughter in the first degree instead of murder (see People v McKenzie, 19 NY3d 463 [2012]). We further note that the defendant does not challenge the legal sufficiency of the evidence presented at trial (see CPL 470.05). Rather, by seeking only to reduce his conviction from murder in the second degree to manslaughter in the first degree, he essentially concedes that he intended to cause Carlucci's death. However, he takes the position that his deadly actions, while intended, were less culpable because they were the product of an extreme emotional disturbance, and that the jury's failure to accept his defense in mitigation of his conduct in killing Carlucci was against the weight of the evidence (see Penal Law §§ 125.25 [1] [a]; 125.20 [2]).

    53

    We begin our analysis by examining the nature and scope of the affirmative defense of extreme emotional disturbance. Penal Law §§ 125.25 (1) (a) and 125.20 (2), "[r]ead in tandem," together "provide that a defendant who proves by a preponderance of the evidence that he or she committed a homicide while [86] `under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse' is guilty of manslaughter and not murder" (People v Roche, 98 NY2d 70, 75 [2002] [internal quotation marks omitted]). The defense of extreme emotional disturbance does not negate intent (see Penal Law § 125.20 [2]; see also People v Gonzalez, 1 NY3d 464, 469 [2004]; People v Patterson, 39 NY2d 288, 302 [1976]; People v Liebman, 179 AD2d 245 [1992]). Instead, the "defense allows a defendant charged with the commission of acts which would otherwise constitute murder to demonstrate the existence of mitigating factors which indicate that, although ... not free from responsibility for [the] crime, [defendant] ought to be punished less severely" (People v Roche, 98 NY2d at 75 [internal quotation marks omitted], quoting People v Casassa, 49 NY2d 668, 675 [1980], cert denied 449 US 842 [1980]). Although the defense of extreme emotional disturbance is "an outgrowth of the `heat of passion' doctrine which had for some time been recognized by New York as a distinguishing factor between the crimes of manslaughter and murder," the defense is broader than the "heat of passion" doctrine, and was intended to apply to a "wider range of circumstances" (People v Casassa, 49 NY2d at 675-676, 679-680).

    54

    The defense of extreme emotional disturbance comprises two elements. The first element is "wholly subjective" and "involves a determination that the particular defendant did in fact act under extreme emotional disturbance, that the claimed explanation as to the cause of his action is not contrived or sham" (id. at 678-679). The subjective element "focuses on the defendant's state of mind at the time of the crime and requires sufficient evidence that the defendant's conduct was actually influenced by an extreme emotional disturbance" (People v Harris, 95 NY2d 316, 319 [2000]). The subjective element is generally associated with a loss of self-control (see id. at 319). The second element, which the Court of Appeals has acknowledged to be "more difficult to describe," requires that an objective determination be made as to whether there was a reasonable explanation or excuse for the emotional disturbance (People v Casassa, 49 NY2d at 679; see People v Harris, 95 NY2d at 319). "Whether such a reasonable explanation or excuse exists must be determined by viewing the subjective mental condition of the defendant and the external circumstances as the defendant perceived them to be at the time, `however inaccurate that perception may have been'" (People v Harris, 95 NY2d at 319 [emphasis added], [87] quoting People v Casassa, 49 NY2d at 679; see People v Cass, 18 NY3d 553, 561 [2012]).

    55

    An appellate court has authority to set aside a verdict as against the weight of the evidence, but it must do so only when, after examining all of the credible evidence, it finds that a different verdict would not have been unreasonable (see People v Danielson, 9 NY3d 342, 348 [2007]). Upon such a finding, it must then weigh "the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony" and decide whether "the trier of fact has failed to give the evidence the weight it should be accorded" (People v Bleakley, 69 NY2d 490, 495 [1987] [internal quotation marks omitted]; see People v Romero, 7 NY3d 633, 644-645 [2006]). Based on the weight of the credible evidence, this Court then must decide whether the jury was justified in rejecting the extreme emotional disturbance defense (see People v Danielson, 9 NY3d at 348; People v Bleakley, 69 NY2d 490 [1987]; People v Bornhoeft, 53 AD3d 666 [2008]). We accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946 [2004]; People v Bleakley, 69 NY2d at 495). However, "[e]ssentially, the court sits as a thirteenth juror and decides which facts were proven at trial" (People v Danielson, 9 NY3d at 348-349).

    56

    In our view, a different verdict would not have been unreasonable in this case. Accordingly, we must proceed to weigh the evidence presented at trial, and determine whether the jury gave the evidence the weight it should be accorded. A conscientious discharge of this duty compels us to conclude that the jury verdict convicting the defendant of murder in the second degree, thus rejecting his extreme emotional disturbance defense, was against the weight of the evidence (see CPL 470.15 [5]; People v Romero, 7 NY3d at 644-645; People v Haney, 85 AD3d 816, 818 [2011]; People v Pickens, 60 AD3d 699, 702 [2009]). Indeed, we find that the evidence supporting the defendant's claim of extreme emotional disturbance was overwhelmingly preponderant (see Penal Law § 25.00 [2]; People v Bleakley, 69 NY2d at 495; People v Liebman, 179 AD2d 245, 258 [1992]).

    57

    As our dissenting colleagues do, we approach the proffered extreme emotional disturbance defense by examining both of its elements: the subjective, wherein a determination must be made as to whether the defendant suffered from a lesser form of "mental infirmity" than "insanity," typically manifested by a [88] loss of self-control (People v Roche, 98 NY2d at 75; People v Harris, 95 NY2d at 319), and then the objective, when we determine whether the defendant's emotional disturbance was supported by a reasonable explanation by assessing the defendant's conduct from his viewpoint under the circumstances as the defendant perceived them to be (see People v Casassa, 49 NY2d at 678-679).

    58

    With respect to the subjective element, the evidence overwhelmingly demonstrates that the defendant, who was in a fragile mental state, was actually influenced by an extreme emotional disturbance when he attacked Carlucci, with whom he had previously shared a loving relationship. The defendant's assault upon Carlucci was unquestionably brutal, with the defendant striking her repeatedly with an aluminum baseball bat to a point beyond redundancy. Indeed, Westchester County Medical Examiner Kunjlata Ashar testified that Carlucci was struck a minimum of 18 times, with enough force to cut her fingertip off, fracture her entire skull, and leave her brain matter entirely eviscerated from her skull. Most of her injuries occurred as the defendant continued to strike her while she was already on the ground. In our opinion, as described by the forensic experts, the attack was nothing short of a barbaric frenzy, and thus indicative of the defendant's loss of self-control.

    59

    We are mindful of the fact that the brutal nature of the attack does not itself prove, with nothing more, that the defendant acted under an extreme emotional disturbance. Indeed, in concluding that a defendant was not entitled to a jury charge on the affirmative defense of extreme emotional disturbance in People v Roche, the Court of Appeals cautioned that "violence and brutality are not necessarily indicative of a loss of self-control or similar mental infirmity, nor is brutality generally more deserving of mercy" (People v Roche, 98 NY2d at 77-78). However, in Roche, the sole evidentiary predicate for the defendant's requested charge on the defense of extreme emotional disturbance was the sheer brutality of the attack (see id. at 75; see also People v McKenzie, 19 NY3d 463 [2012]). In contrast, in People v McKenzie (19 NY3d 463 [2012]), the Court of Appeals concluded that it was error to fail to instruct the jury on the defense where, among other things, "the sheer number and redundancy of the knife wounds" the defendant inflicted on the victim was indicative of his loss of control (id. at 467). In McKenzie, "the evidentiary predicate for the defense was augmented by inculpatory admissions to third parties, including [89] the police, in which defendant stated that he had `snapped'" and there "were also reports of defendant's appearance and demeanor consistent with his having been affectively disturbed in the assault's near aftermath" (id. at 467-468, citing People v Moye, 66 NY2d 887, 888-890 [1985]).

    60

    The defendant's conduct in the aftermath of the homicide supports the conclusion that he was overtaken by an extreme emotional disturbance when he attacked Carlucci. As in McKenzie, the defendant made no real effort to conceal his actions, leaving the murder weapon beside Carlucci's body, and leaving physical evidence connecting him to the crime throughout the house. The defendant made no effort to evade capture. While he started driving to his upstate time share property, a place where he could easily be found, after a few hours he stopped his car and stood at an overpass until New York State Troopers arrived. He truthfully identified himself to the Troopers and gave his true address, a location where Carlucci's body, so brutally slain, would be found. While the defendant did not immediately disclose to the Troopers the circumstances that brought him to the overpass, he made comments that implied there was much more to his story and a willingness to confess. One of the Troopers concluded that the defendant was "mentally disordered," i.e., somebody who would have intent to harm themselves, an emotionally disturbed person. The defendant exhibited extreme remorse, albeit in a manner that was consistent with his own coping skills.

    61

    The evidence further established that the defendant suffered from "significant mental trauma," i.e., a condition that manifested in depression and anxiety for which he had been treated for many years, but which in the six months immediately preceding the attack had caused the defendant's condition to deteriorate. During that six-month period, he became even more depressed and anxious, withdrawn, obsessed, sleep-deprived, and paranoid. This was mental trauma which affected the "defendant's mind for a substantial period of time, simmering in the unknowing subconscious and then inexplicably coming to the fore" (People v Patterson, 39 NY2d 288, 303 [1976]). Subjectively, he was under the influence of an extreme emotional disturbance at the time of the homicide.

    62

    Turning to the objective element of the defense, we find that the evidence further supports a finding that, from the defendant's perspective, there was a reasonable explanation for the emotional disturbance. While it is difficult to stand in the [90] defendant's shoes, and understand his actions at the time of the homicide, what made him "snap," and even his actions immediately after, it is the factfinder's obligation to assess the reasonableness of the extreme emotional disturbance from "the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be" (Penal Law § 125.25 [1] [a] [emphasis added]; see People v McKenzie, 19 NY3d at 466). Indeed, "[a]pplication of the statute governing the availability of the defense of extreme emotional disturbance entails in each case an understanding of the situation as it would have been perceived, not by a perfectly sensible individual but by the particular defendant at bar" (People v Liebman, 179 AD2d at 255-256). Clearly, the situation that provoked this defendant to such heinous action was less apparently provocative, incendiary, and volatile than the classic cases where the extreme emotional disturbance defense is invoked, e.g., where a lover is found in a compromising position with another, or where a loved one is in danger, such situations that a "perfectly sensible" person (id. at 255) would more easily find provocative. However, limiting the defense to such situations ignores the mandate that the trier of fact is not to evaluate the reasonableness of the explanation for the extreme emotional disturbance from his or her personal viewpoint, but from the defendant's unique perspective.

    63

    We cannot assess the reasonableness of the defendant's response in a vacuum. We approach it from his position, which he arrived at after years marked by significant mental infirmity and a lengthy psychiatric history for which he received professional assistance, including hospitalization. He was sleep-deprived. Subjectively, he was in a fragile mental state, which did not arise from the spontaneous situation our dissenting colleagues point to, i.e., the "brief conversation about an upcoming family Easter dinner party" (infra at 92).

    64

    We "emphasize," as did the Court of Appeals, that the objective test "is to be applied to determine whether defendant's emotional disturbance, and not the act of killing, was supported by a reasonable explanation or excuse" (People v Casassa, 49 NY2d at 679 n 2). While the defendant's own perceptions were inaccurate, we accept that the defendant's emotionally disturbed actions, amidst his seriously weakened psychiatric state and given his long history of mental illness, were triggered when Carlucci rebuffed his suggestion that they cancel the Easter dinner party. As the Appellate Division, First Department, [91] recognized in concluding that the defendant was entitled to a reduction of his conviction from murder in the second degree to manslaughter in the first degree in People v Liebman (179 AD2d 245 [1992]), the issue is not whether the defendant's act of killing "was a reasonable response under the circumstances for, clearly, it was not. Rather, the issue is the reasonableness of the explanation offered for the defendant's extreme emotional reaction" (id. at 256). That it was the prospect of an upcoming family dinner party that triggered the extreme emotional response is difficult for an individual who is not emotionally disturbed to fathom. However, when we step into this defendant's perspective, objectively, it is not outside the bounds of reasonableness. This defendant's unique feeling during the six-month period of overwhelming pressure of "all [his] problems, all [his] stuff," was compounded by the pressure of having to host "all these people," his fear that he couldn't "talk to all these people" when he "couldn't talk to one," and then, albeit innocently, by being asked by his loving companion if he was "crazy." We are of the opinion that this defendant did in fact act under an extreme and uncontrived emotional disturbance, for which there was a reasonable explanation (see People v Casassa, 49 NY2d at 679).

    65

    We do not believe that our conclusion impermissibly intrudes on the jury's province to assess the credibility of expert testimony. The basic facts are undisputed. The relevant difference in the psychiatric testimony is reduced to two opposite opinions as to the reasonableness of the explanation for the defendant's emotional disturbance in the early morning hours of March 22, 2008. Certainly, the jury as the trier of fact could accept or reject the expert opinion with respect to whether the defendant acted under an extreme emotional disturbance for which there was a reasonable explanation (see People v Kwas, 96 AD3d 877 [2012]). However, we, "like the trier of fact [in the trial court], [must] `weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony'" (People v Bleakley, 69 NY2d at 495, quoting People ex rel. MacCracken v Miller, 291 NY 55, 62 [1943]). Thus, we must be certain that the evidence is of such weight and credibility as to convince us that the jury was justified in rejecting the affirmative defense of extreme emotional disturbance (see People v Cahill, 2 NY3d 14, 58 [2003]). We are convinced that the jury was not justified in concluding that the defendant was not under the influence of [92] an extreme emotional disturbance, for which there was a reasonable explanation, when he attacked and killed Jeanette Carlucci.

    66

    Therefore, we reduce the defendant's conviction of murder in the second degree to manslaughter in the first degree.

    67

    The defendant's remaining arguments are without merit or need not be addressed in light of our determination.

    68

    Accordingly, the judgment is modified, on the facts, by reducing the defendant's conviction of murder in the second degree to manslaughter in the first degree, and vacating the sentence imposed thereon, and as so modified, the judgment is affirmed, and the matter is remitted to the County Court, Westchester County, for resentencing.

    69

    ANGIOLILLO, J.P. (dissenting).

    70

    Following a brief conversation about an upcoming family Easter dinner party, the defendant brutally bludgeoned Jeanette Carlucci multiple times with a baseball bat, causing her death. By the defendant's own sworn account at trial, immediately before he delivered the first blow, Carlucci responded to his plea that they cancel the dinner party with a single question, "are you crazy?," uttered "in a normal tone" of voice. A jury of 12 determined that the defendant's homicidal act was not "an understandable human response deserving of mercy" (People v Casassa, 49 NY2d 668, 680-681 [1980]) and rejected his affirmative defense of extreme emotional disturbance. We would uphold the jury's verdict as not against the weight of the evidence and affirm the conviction. Accordingly, we respectfully dissent.

    71

    Under the statutory scheme, a defendant who proves the elements of the affirmative defense of extreme emotional disturbance by a preponderance of the evidence establishes a mitigating circumstance reducing murder to manslaughter in the first degree (see Penal Law §§ 25.00 [2]; 125.20 [2]; 125.25 [1] [a]; People v Diaz, 15 NY3d 40, 44-45 [2010]; People v Patterson, 39 NY2d 288, 303 [1976]). "The influence of an extreme emotional disturbance explains the defendant's intentional action, but does not make the action any less intentional" (People v Patterson, 39 NY2d at 302; see Penal Law § 125.20 [2]; People v Gonzalez, 1 NY3d 464, 469 [2004]). The defense "does not absolve the defendant of criminal responsibility, but allows him/her to demonstrate the existence of mitigating factors which indicate that he/she should be punished less severely" (People v Cass, 18 NY3d 553, 561 n 4 [2012] [internal quotation marks omitted]; [93] see People v Roche, 98 NY2d 70, 75 [2002]; People v Harris, 95 NY2d 316, 318 [2000]; People v Casassa, 49 NY2d at 680-681).

    72

    To establish this affirmative defense, a defendant is required to prove two elements by a preponderance of the evidence (see People v Roche, 98 NY2d at 75).

    73

    "First, it must be determined that the defendant actually acted under the influence of extreme emotional disturbance, a subjective determination. Second, there must be a reasonable explanation for the defendant's emotional disturbance, determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be, an objective determination which is to be made by viewing the subjective, internal situation in which the defendant found himself and the external circumstances as he perceived them at the time, however inaccurate that perception may have been" (People v Cass, 18 NY3d at 561 [internal quotation marks and citation omitted]; see People v Casassa, 49 NY2d at 678-679).

    74

    The first, subjective element, is established with evidence that a defendant actually suffered from "a mental infirmity not rising to the level of insanity at the time of the homicide" (People v Roche, 98 NY2d at 75; see People v Patterson, 39 NY2d at 302) which was "not contrived or [a] sham" (People v Casassa, 49 NY2d at 679). Here, the defendant's expert witness, Dr. Alan Tuckman, and the People's expert witness in rebuttal, Dr. Angela Hegarty, both testified that the defendant had suffered from a longstanding anxiety disorder in the years prior to the homicide. However, these experts advanced opposite opinions as to whether the defendant, at the time he committed the homicide, was actually suffering from, and acting under the influence of, an extreme emotional disturbance which was not contrived or a sham, and the experts each stated the evidentiary basis for their respective opinions. Under the circumstances, the jury was free to accept or reject the opinion of either expert in determining whether the defendant proved the first, subjective element of his defense (see e.g. People v Kwas, 96 AD3d 877 [2012]).

    75

    However, even assuming that the defendant proved the first, subjective element of his defense, in our view, the evidence preponderated against establishment of the second element, which required an "objective determination" that there was a [94] "reasonable explanation" for the defendant's extreme emotional disturbance at the time he committed the homicide, determined from the viewpoint of a person in his situation (People v Cass, 18 NY3d at 561 [internal quotation marks omitted]; see People v Roche, 98 NY2d at 76; People v Harris, 95 NY2d at 319; People v Casassa, 49 NY2d at 679).

    76

    With respect to the events immediately preceding the homicide, the defendant testified that he was awakened by a noise in the house and went to check on it, taking a baseball bat with him for protection. When he found that the house was secure, he put the bat down and paced around the kitchen for an hour-and-a-half because he was "worked up" about hosting the Easter dinner party and other things, including money problems. Carlucci, who was in the bedroom next to the kitchen, asked, "[W]hat are you doing? You have to get ready for the party." The defendant replied, "I think we have to cancel the party." Carlucci responded, "[A]re you crazy?" She spoke "in a normal tone, not a mean tone or anything else." The defendant thereupon repeatedly yelled, "I can't do this anymore," grabbed the bat, and started beating her. In further explanation, the defendant testified that he had been thinking of all his problems, he "couldn't do this party," it was "impossible," and he "lost control." Dr. Tuckman opined that the defendant's emotionally weakened state from his anxiety disorder "probably" triggered his explosion when Carlucci suggested that they could not cancel the party.

    77

    Whether the defendant's explanation or excuse was objectively reasonable must be determined by viewing it from the subjective, internal situation in which the defendant found himself and the external circumstances as he perceived them (see People v Cass, 18 NY3d at 561), including the evidence of his serious emotional problems, anxiety disorder, money and business problems, guilt about the breakup of his marriage and cohabitation with the victim, and emotional difficulty in facing family members at the upcoming party. Fully crediting this evidence and viewing the circumstances as the defendant perceived them, the jury was entitled to reject the defendant's proffered excuse for his extreme emotional disturbance at the time of the murder as unreasonable and not warranting mitigation (see People v White, 79 NY2d 900, 903 [1992]; People v Casassa, 49 NY2d at 680; People v Ludwigsen, 48 AD3d 484 [2008]; People v Yong Ho Han, 200 AD2d 780, 781 [1994]; People v Murden, 190 AD2d 822, 822-823 [1993]). "Sitting as the thirteenth juror" in this [95] appeal (People v Danielson, 9 NY3d 342, 349 [2007]), we find that the jury properly gave the evidence the weight it should be accorded and that the verdict is supported by the weight of the evidence (see CPL 470.15 [5]; People v Bleakley, 69 NY2d 490, 495 [1987]).

    78

    Under the second element, it is the reasonableness of the "explanation or excuse" for the defendant's extreme emotional disturbance (People v McKenzie, 19 NY3d 463, 466 [2012]; see People v Casassa, 49 NY2d at 679), not the reasonableness of the emotional disturbance itself, which must be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be, however inaccurate his perception may have been (see People v Cass, 18 NY3d at 561). Here, our colleagues in the majority posit that the defendant's long-standing emotional disorder culminated in a fragile mental state which did not arise from the spontaneous situation involving the brief conversation about the upcoming dinner party, while they acknowledge the undisputed fact that the defendant's emotionally disturbed response was "triggered when Carlucci rebuffed his suggestion that they cancel the Easter dinner party" (supra at 90). Fully accepting that formulation, we cannot subscribe to the next step in the majority's analysis which is essential to the establishment of the objective element, namely, that the defendant's testimony regarding the Easter dinner party established an objectively reasonable excuse for his extreme emotional disturbance from the viewpoint of a person in his position. An objectively reasonable excuse for the extreme emotional disturbance is not one which is "so peculiar to [the defendant] that it was unworthy of mitigation" (People v Casassa, 49 NY2d at 680), or one which merely involved an argument between parties in a difficult relationship (see People v Murden, 190 AD2d at 822-823). Rather, an objectively reasonable excuse determined from the defendant's viewpoint is one involving an immediately preceding event which provokes "an understandable human response deserving of mercy" (People v Harris, 95 NY2d at 318 [internal quotation marks omitted] [the male victim taunted the defendant about the victim's past and potential future infidelities with the defendant's girlfriend]; see People v Moye, 66 NY2d 887, 888-890 [1985] [the female victim mocked and taunted the defendant about his impotence]; compare People v White, 79 NY2d at 903 [objective element not established with proof of a temporally remote provocative act]).

    79

    [96] Our colleagues in the majority rely on People v Liebman (179 AD2d 245 [1992]), a case involving a defendant with longstanding mental illness, in which the Appellate Division, First Department, with one Justice dissenting, modified the conviction of murder in the second degree, after a nonjury trial, by reducing it to manslaughter in the first degree. However, that case is distinguishable for its markedly compelling evidence in support of the objective element. While the lengthy opinion in Liebman will not be repeated here, in essence, the defendant was utterly dependent emotionally and financially upon the victim, his wife, who controlled his money. At a time when the defendant's "sanity hung in the balance," he pleaded with her for inpatient hospitalization, and their argument reached such a pitch that the victim told the defendant his problems would be solved by taking an overdose of his medication (id. at 258). From the defendant Liebman's perspective, his response was an understandable one, deserving of mercy. Here, by contrast, a jury of 12 rejected the defendant's excuse that his emotional disturbance was triggered when his loving companion asked him, in a normal tone, if he was "crazy" for wanting to cancel the dinner party. Even considering this excuse in the context of the defendant's months of problems, pressure, sleep deprivation, medication, depression, and anxiety, including the circumstances as the defendant believed them to be, we do not find this excuse or explanation to be a reasonable one from the viewpoint of a person in the defendant's situation.

    80

    Nor does the holding in People v McKenzie (19 NY3d at 463) suggest that the defendant here met his burden of proof. In McKenzie, the Court of Appeals determined the significantly different issue of whether the trial court erred as a matter of law in denying the defendant's request to charge the affirmative defense of extreme emotional disturbance. "In judging whether to accede to a defendant's request to charge an affirmative defense, a court is bound to view the evidence in the light most favorable to the defendant, an exercise understood to be incompatible with weighing the evidence to resolve competing inferences" (id. at 466 [citation omitted]). Thus, "[t]he charge must be given if there is evidence reasonably supportive of the defense, even if there is other evidence which, if credited, would negate it" (id.). In McKenzie, the evidence with respect to the first, subjective element included "the sheer number and redundancy of the knife wounds" inflicted on the decedent, the defendant's "inculpatory admissions to third parties, including [97] the police," in which he stated that he had "`snapped,'" and evidence of the "defendant's appearance and demeanor consistent with his having been affectively disturbed in the assault's near aftermath" (id. at 467-468). The evidence in support of the second, objective element presented a "closer question" (id. at 468) and included a heated argument in which the victim refused to have sexual relations with the defendant and told him she had been unfaithful with one of his friends in retaliation for the defendant's similar conduct. The Court's determination that this evidence, viewed in the light most favorable to the defendant, warranted submission of the affirmative defense to the jury does not control our determination here, which is based upon a full review of the record and the weighing of competing evidence and reasonable inferences flowing from the evidence.

    81

    Upon this full review, we find that the defendant failed to satisfy his burden of establishing by a preponderance of the evidence the second element of the affirmative defense of extreme emotional disturbance. In our view, the holding of the majority encroaches upon the jury's function in making this "objective determination" (People v Cass, 18 NY3d at 561) by transforming the second element into a wholly subjective determination encompassing an excuse or triggering event peculiar to this defendant. Accordingly, we would hold that the jury's verdict was not against the weight of the evidence and, as the defendant's remaining contentions are without merit, affirm the defendant's conviction of murder in the second degree (see People v Reynart, 71 AD3d 1057, 1057-1058 [2010]; People v Pallonetti, 62 AD3d 1027, 1028 [2009]; People v Ludwigsen, 48 AD3d 484 [2008]; People v Yong Ho Han, 200 AD2d at 781).

    82

    Ordered that the judgment is modified, on the facts, by reducing the defendant's conviction of murder in the second degree to manslaughter in the first degree, and vacating the sentence imposed thereon; as so modified, the judgment is affirmed, and the matter is remitted to the County Court, Westchester County, for resentencing.

  • 7 People v. Tabarez

    1

    113 A.D.2d 461 (1985)

    2
    The People of the State of New York, Respondent,
    v.
    Jose Tabarez, Also Known as Primo Fernandez, Appellant
    3

    Appellate Division of the Supreme Court of the State of New York, Second Department.

    December 30, 1985

    4

    Stephen J. Pittari (David B. Weisfuse of counsel), for appellant.

    5

    Carl A. Vergari, District Attorney (Lois A. Cullen and Gerald D. Reilly of counsel), for respondent.

    6

    MOLLEN, P. J., and BRACKEN, J., concur with GIBBONS, J.; LAWRENCE, J., concurs in the affirmance of the convictions of robbery in the first degree and criminal possession of a weapon in the third degree, but dissents as to the reversal of the conviction of attempted murder in the first degree and votes to affirm said conviction, in an opinion, in which WEINSTEIN, J., concurs.

    7
    [462] GIBBONS, J.
    8

    Defendant was convicted, following a jury trial, of attempted murder in the first degree, robbery in the first degree and criminal possession of a weapon in the third degree. On this appeal, the principal issue is whether the County Court erred in refusing his request to instruct the jury on the affirmative defense of "extreme emotional disturbance" set forth in Penal Law § 125.27 (2) (a), which would have had the effect of permitting the jury to find him guilty of attempted manslaughter in the first degree (Penal Law §§ 110.00, 125.20 [2]) rather than attempted murder in the first degree in connection with a shooting incident in the City of New Rochelle on the evening of February 18, 1981. In our view, this question must be answered in the affirmative. Here, the "threshold" requirement entitling defendant to the charge was met, i.e., there was "sufficient credible evidence for the jury to determine that, by a preponderance of the evidence, the elements of the defense [were] established" (see, People v Moye, 66 N.Y.2d 887, 890, [463] n). Accordingly, the ensuing conviction of attempted murder in the first degree should be reversed and the case remitted for a new trial on that count of the indictment. As so modified, the judgment should be affirmed.

    9

    Penal Law § 125.27 (2) (a) pertinently provides as follows:

    10

    "In any prosecution [for murder in the first degree], it is an affirmative defense that:

    "(a) The defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be. Nothing contained in this paragraph shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime except murder in the second degree" (cf. Penal Law § 125.25 [1] [a]).

    11

    Initially, we note that the language of Penal Law § 125.27 (2) (a) specifically indicates that the defense is applicable only to murder in the first and second degrees. Nevertheless, we find that the defense is applicable to attempted murder in the first degree even in the absence of statutory language so indicating. Based upon rules of construction applicable to the Penal Law, i.e., it is not to be strictly construed, but rather construed "according to the fair import of [its] terms to promote justice and effect the objects of the law" (Penal Law § 5.00; People v Teicher, 52 N.Y.2d 638, 647), we conclude that a defendant, acting under the influence of extreme emotional disturbance, who shoots at a police officer and misses, should not be convicted of a class A-1 felony, while he would be subject only to conviction for a class B felony had his bullet found its mark and killed the officer (see, Penal Law §§ 125.20, 125.25, 125.27, 110.05; cf. People v Lanzot, 67 AD2d 864, appeal dismissed 49 N.Y.2d 796). Such a construction would defeat both the manifest purpose of section 125.27 to protect police officers, by inadvertently rewarding completed attempts resulting in death, and the purpose of the defense which is "to allow the finder of fact the discretionary power to mitigate the penalty when presented with a situation which, under the circumstances, appears to them to have caused an understandable weakness in one of their fellows" (People v Casassa, 49 N.Y.2d 668, 680, cert denied 449 US 842).

    12

    Turning to the evidence, and viewing it most favorably to the accused (see, People v Moye, supra; People v Watts, 57 N.Y.2d 299, 301; [464] People v Vera, 94 AD2d 728, 729), it appears that defendant left his home on February 18, 1981 with no intention of committing a crime, boarded a train, got off at an unknown location (apparently in New Rochelle), and just started walking about aimlessly. Upon coming to a liquor store, the defendant entered and pulled out a gun and demanded money. The owner offered no resistance. After taking the money, the defendant "just stayed there" in the liquor store for a few more minutes, and then exited, turned to the left and walked (not ran) down Main Street toward Beachwood Avenue. A couple of minutes later, the defendant walked back past the liquor store, this time in the direction of the New England Thruway.

    13

    Shortly after the incident was reported to the police, the defendant, walking west on Main Street, was observed by New Rochelle Police Officer Douglas Burrell. The latter exited his vehicle, carrying a shotgun, and shouted to defendant to stop. Defendant continued walking and "sort of looked around". Officer Burrell then shouted, "Yeah, you, come here, police." As defendant turned, he fired in Officer Burrell's direction. Officer Burrell returned fire with the shotgun. At this point, and notwithstanding the fact that his bullets had injured no one, the defendant simply turned again and resumed walking (albeit, at a quickened pace), seemingly oblivious to whatever additional action the officer might have deemed it advisable to take. Other officers soon arrived, but even when confronted with several armed police officers and told to halt, the defendant initially failed to respond, and only later threw down his weapon. In his statement to the police, the defendant indicated that he had been out of work for approximately nine months. He had fired upon the police officer because "he was scared * * * just scared", and added that "a long time ago" in Santo Domingo, he had eaten a local fruit which not only made him extremely ill, but left residual effects, causing him on occasion to "act irrational[ly] or do things that he does not quite control".

    14

    In addition, the defendant was able to adduce expert psychiatric testimony to the effect that he had an IQ of 66, in the borderline retarded category; has several pronounced personality disorders, including schizophrenia; had become "increasingly depressed [and] * * * immobilized" during the period immediately preceding the shooting; and had fired upon the officer in an "isolated explosive episode", "spontaneously" and "automatically", i.e., "emotionally" and "without thinking", [465] which "invariably occurs" when a person is under "great emotional stress". In fact, on re-cross-examination, one of the defendant's experts (Dr. Tuckman) effectively indicated that, in his opinion, the defendant was acting under "extreme emotional disturbance" at the time of the instant shooting. This opinion, elicited by the prosecutor, bore directly on the nature and extent of defendant's emotional strain.

    15

    Taking the foregoing view of the evidence, it is clear that there exists on the peculiar facts and circumstances of this case sufficient evidence which could support a defendant's verdict on at least the first requirement of the statutory affirmative defense, to wit, that at the time of the instant shooting the defendant was acting under the influence of "extreme emotional disturbance" (Penal Law § 125.27 [2] [a]; People v Casassa, 49 N.Y.2d 668, cert denied 449 US 842, supra). As the Court of Appeals noted in People v Casassa (supra, at pp 678, 679), the test to be applied to this element of the statutory defense is "wholly subjective" in nature, and requires a factual determination that, at the operative moment, "the particular defendant did in fact act under extreme emotional disturbance". Accordingly, no question as to the "reasonableness" of that disturbance is presented at this juncture, and, thus viewed, there was ample objective and opinion evidence from which a jury might have concluded that at the time that he turned and fired, this defendant, for whatever reason or combination of reasons, was suffering from extreme emotional disturbance.

    16

    A closer question is presented with regard to the second element of the statutory defense, for here the Court of Appeals has decreed an "objective" standard, pursuant to which the determination as to whether or not there exists a "reasonable explanation or excuse" for the proffered emotional disturbance (Penal Law § 125.27 [2] [a]) is to be made "by viewing the subjective, internal situation in which the defendant found himself and the external circumstances as he perceived them at the time, however inaccurate that perception may have been, and assessing from that standpoint whether the explanation or excuse for his emotional disturbance was reasonable" (People v Casassa, 49 N.Y.2d 668, 679, supra; People v Moye, 66 N.Y.2d 887, supra; see also, ALI Model Penal Code § 210.3). When making a determination of reasonableness, the critical element in the Model Penal Code formulation is the clause requiring that reasonableness be assessed "from the viewpoint of a person in the actor's situation" (ALI Model Penal Code § 210.3 [1] [b]; [466] cf. Penal Law § 125.27 [2] [a]). As noted in the Model Penal Code Commentaries, "[t]he word `situation' is designedly ambiguous * * * it is clear that personal handicaps and some external circumstances must be taken into account * * * for it would be morally obtuse to appraise a crime for mitigation of punishment without reference to these factors" (ALI Model Penal Code and Commentaries § 210.3, at 62 [Official Draft and Revised Comments, 1980]).

    17

    Since the ultimate question of whether the affirmative defense has been established rests largely within the discretionary power of the jury (see, People v Morrison, 95 AD2d 868, 869), it is our belief that the delivery of the charge in this case was required in order to give effect to the salutary purpose underlying enactment of the statutory defense in the form suggested in the Model Penal Code (see, § 210.3 [1] [b]). As the Court of Appeals stated in People v Casassa (49 N.Y.2d 668, 681, supra): "In our opinion, this statute would not require that the jury or the court as trier of fact find mitigation on any particular set of facts, but, rather, allows the finder of fact the opportunity to do so, such opportunity being conditional only upon a finding of extreme emotional disturbance in the first instance. In essence, the statute requires mitigation to be afforded an emotionally disturbed defendant only when the trier of fact, after considering a broad range of mitigating circumstances, believes that such leniency is justified."

    18

    And, as noted in the Commentaries to the Model Penal Code: "In the end, the question is whether the actor's loss of self-control can be understood in terms that arouse sympathy in the ordinary citizen. Section 210.3 [of the Model Penal Code] faces this issue squarely and leaves the ultimate judgment to the ordinary citizen in the function of a juror assigned to resolve the specific case" (ALI Model Penal Code and Commentaries § 210.3, at 63 [Official Draft and Revised Comments, 1980]).

    19

    In this regard we consider most significant an inquiry by the jurors in the case at bar whether they could recommend leniency to the court.

    20

    We agree with our dissenting colleagues that the robbery itself could not, as a matter of law, constitute a reasonable explanation or excuse for defendant's extreme emotional disturbance (see, ALI Model Penal Code and Commentaries § 210.3, at 64-65 [Official Draft and Revised Comments, 1980]), for an emotional disturbance is excusable only "`if it is [467] occasioned by [a] provocation, event or situation for which the offender was not culpably responsible'" (ALI Model Penal Code and Commentaries § 210.3, at 64 [Official Draft and Revised Comments, 1980], quoting from the Final Report of the National Commission on Reform of Federal Criminal Laws — Proposed New Federal Criminal Code [18 USC] [Jan. 7, 1971]).

    21

    In our view, the evidence supports a conclusion that the explanation or excuse offered by this defendant was "objectively" reasonable, and not attributable to the robbery. Dr. Tuckman, a psychiatrist, diagnosed defendant's reaction as an "isolated explosive episode" triggered by increasing depression and immobilization. In his opinion, the tremendous strain affecting defendant flowed from "more than" the robbery. It was also caused by his prolonged unemployment and his inadequate fragile personality. Dr. Goldstein, a certified clinical psychologist, agreed that defendant's adjustment and explosive disorder predated the robbery by six months. Furthermore, in his opinion, defendant's residual type schizophrenia probably dated back to his childhood and first hospitalization at age 14 (from the toxic fruit).

    22

    In sum, the evidence on this record indicates that defendant's disturbance could have predated the robbery, and, taking into account his inadequate personality and borderline retardation, could have been triggered by the stress of his prolonged unemployment, as well as the residual effects of his ingestion of toxic fruit as a youngster in Santo Domingo. Whether the culpable or nonculpable situations and events were responsible for defendant's disturbance was a factual question to be resolved by the jury, upon proper instructions.

    23

    To reach its conclusion that there is insufficient credible evidence to support the defense of extreme emotional disturbance, the dissent emphasizes unfavorable portions of the testimony, in abrogation of the rule that the evidence must be viewed in a light most favorable to defendant (see, People v Moye, 66 N.Y.2d 887, supra; People v Watts, supra, at p 301; People v Vera, 94 AD2d 728, 729, supra). That defendant was not psychotic or insane is irrelevant. The issue is whether there was sufficient evidence to create a question for the trier of fact that defendant was acting under the influence of extreme emotional disturbance, for which there was a reasonable explanation or excuse. Contrary to the position adopted by the dissent, the evidence permits a conclusion that defendant's overwhelming emotional stress arose prior to and was [468] triggered by factors other than his commission of the robbery. The dissent, rather than acknowledging the factual issue raised, resolves it, concluding that defendant brought about his own mental disturbance by involving himself in a crime. The cause and reasonableness of defendant's extreme emotional disturbance was properly a factual question to be resolved by the jury, for once the threshold requirement is met, i.e., once "there is sufficient credible evidence for the jury to determine that, by a preponderance of the evidence, the elements of the defense are established", it is "then for the jury to resolve inconsistencies in testimony and reach conclusions as to the `volitional, deliberate and calculated' nature of defendant's acts" (People v Moye, 66 N.Y.2d 887, 890, n, supra).

    24

    We are persuaded in reaching this conclusion by the peculiar facts and circumstances of this case, particularly the uncontroverted testimony of prosecution witnesses concerning defendant's strange behavior on the date of the robbery, his hesitation, aimless wandering and seeming incomprehension of his situation. We acknowledge that it will be a rare case where the defense of extreme emotional disturbance will be applicable when a homicide or attempted homicide follows commission of another crime.

    25

    Accordingly, since, under the facts and circumstances of this case, there was sufficient credible evidence which would support a finding of extreme emotional disturbance, and inasmuch as an explanation had been offered by the defendant and his psychiatric experts, "which a rational jury might have accepted or rejected" (see, People v Moye, 66 N.Y.2d 887, 890, supra), the County Court erred in refusing to honor the defendant's request to charge on the affirmative defense of "extreme emotional disturbance" (Penal Law § 125.27 [2] [a]; see, People v Lanzot, 67 AD2d 864, appeal dismissed 49 N.Y.2d 796, supra). Under such circumstances, the failure of the trial court to deliver the requested charge constituted reversible error (see, People v Moye, supra; People v Watts, 57 N.Y.2d 299, 301, supra; People v Vera, 94 AD2d 728, 729, supra).

    26

    We finally note that harmless error analysis has no place on the facts and circumstances of this case, given the jurors' request concerning leniency. While they found that defendant possessed the requisite intent for attempted murder, they nevertheless evidenced precisely the sort of understanding to which the defense is directed, i.e., "whether the actor's loss of self-control can be understood in terms that arouse sympathy in the ordinary citizen" (ALI Model Penal Code and Commentaries [469] § 210.3, at 63 [Official Draft and Revised Comments, 1980]). Contrary to the contention of the dissent, the jury was not permitted "to consider lesser degrees of the crime of attempted murder in the first degree and thereby exercise an appropriate degree of leniency, if it had been so inclined". The trial court properly instructed the jurors that they could consider the lesser included offenses only if they found defendant not guilty of attempted murder. The jurors did find defendant guilty of attempted murder, and, therefore, pursuant to the court's instruction, could not exercise leniency with respect to that crime because the mitigating factor of extreme emotional disturbance was not presented to them. The jury could have exercised leniency and followed the court's instruction only if the defense of extreme emotional disturbance had been charged.

    27

    LAWRENCE, J. (concurring in part and dissenting in part).

    28

    We are unanimous in affirming the convictions for robbery in the first degree and criminal possession of a weapon in the third degree and the sentences imposed thereon. We also agree that the affirmative defense of extreme emotional disturbance is available, in a proper case, where the charge is attempted murder of a police officer (Penal Law §§ 110.00, 125.27 [2] [a]; People v Lanzot, 67 AD2d 864, 866, appeal dismissed 49 N.Y.2d 796). The issue which divides us is simply whether in this case the evidence presented was such as to warrant submitting the affirmative defense to the jury. In my view, based on the law and the facts, the trial court properly declined defendant's request to so charge the jury.

    29

    As noted by the Court of Appeals in People v Moye (66 N.Y.2d 887, 890, n), "[i]n determining whether to submit the affirmative defense of extreme emotional disturbance to the jury, it is for the court initially to decide if there is sufficient credible evidence for the jury to determine that, by a preponderance of the evidence, the elements of the defense are established".

    30

    Reviewing the evidence in the light most favorable to defendant, as we must on this issue (see, People v Watts, 57 N.Y.2d 299), certain facts were nevertheless clearly established.

    31

    On February 18, 1981, a Wednesday, at about 6:30 P.M., defendant walked into a liquor store located on Main Street in New Rochelle. After inspecting the wine rack and appearing to be interested in the price of the wine on display, he pulled out a gun and said, "Give me money". The proprietor told him [470] to take the money and defendant proceeded to clean out the cash register. He then examined a wallet on a nearby desk, which was empty, and asked, "Is that all?" Then he "turned around and walked out [of the store] very calmly". The proprietor testified that during the robbery defendant was calm and did not appear agitated or excited.

    32

    A short time later, a police officer responding to a radio report of the robbery, spotted defendant approximately a quarter of a mile from the liquor store. The officer exited his police car armed with a shotgun, and directed defendant to halt. Defendant looked over his shoulder, then turned and fired four shots at the police officer. The officer returned the fire. Each missed the other. Moments later, surrounded by several police officers, defendant dropped his weapon and surrendered.

    33

    The next day, upon questioning by a Spanish-speaking police officer,[1] who first gave defendant his Miranda rights, defendant confessed to the robbery and shooting. He disclosed that he had stolen the gun from a grocery store in his neighborhood. He further stated that he had fired at the police officer because "he was just scared".

    34

    Prior to his trial, defendant served a notice pursuant to CPL 250.10 that he intended to rely on an insanity defense and would offer psychiatric evidence in support thereof. Subsequently, the insanity defense was withdrawn before the presentation of the defendant's case,[2] and the court indicated to the jury that the psychiatric testimony that the defense would present would be received on the limited issue of intent.

    35

    The court specifically instructed the jury as follows:

    36

    "Before we begin the defendant's case, I would like to offer a word of explanation to you.

    "As I understand it, the defendant's witness, or the next two witnesses, will be a psychologist and a psychiatrist.

    "The defendant in this case has not interposed a defense of not guilty by reason of insanity. There was no claim he was insane at the time this happened as provided by law. It's being offered on the question of intent and may be considered for that purpose.

    [471] "In addition, some of these witnesses will be permitted to testify to some hearsay, that is, what other people said to them, probably for the most part what the defendant said to them during this examination, and this is permitted for the purpose of the fact that the person said it, not for the purpose that what they said is true."

    37

    No objection was taken to the limiting instructions, which thus became the law of the case. Based upon the limiting instructions, the trial court ruled that the expert psychiatric testimony upon which defendant now relies was simply not available to support the affirmative defense of extreme emotional disturbance.

    38

    Even if we consider the psychiatric testimony on this appeal despite the limiting instructions, it is clear that the expert testimony was not sufficient to establish the elements of the affirmative defense.

    39

    It is an affirmative defense to the crime of attempted murder that the defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse (Penal Law §§ 110.00, 125.27; People v Patterson, 39 N.Y.2d 288, 302, affd 432 US 197), and the defendant is required to establish such defense by a preponderance of the credible evidence (Penal Law § 25.00 [2]; People v Patterson, supra).

    40

    The Court of Appeals has indicated that the defense of extreme emotional disturbance has two principal elements (People v Casassa, 49 N.Y.2d 668, 678-679, cert denied 449 US 842). The first one, that the defendant acted under extreme emotional disturbance, is "wholly subjective — i.e., it involves a determination that the particular defendant did in fact act under extreme emotional disturbance, that the claimed explanation as to the cause of his action is not contrived or sham" (People v Casassa, supra, at pp 678-679). The second component requires that there be a reasonable explanation or excuse for the particular emotional disturbance (People v Casassa, supra, at p 679).

    41

    It is clear that the affirmative defense of extreme emotional disturbance was intended to replace "the traditional language of `heat of passion', with a new formulation", and thus avoid "so arbitrary a limit on the nature of circumstances that might justify a mitigation" (People v Patterson, supra, at pp 300-301). Nevertheless, implicit in the Model Penal Code formulation of the defense, from which our statute is derived, [472] is the concept that an extreme emotional disturbance is excusable only "`if it is occasioned by any provocation * * * for which the offender was not culpably responsible'" (ALI Model Penal Code and Commentaries § 210.3, at 64 [Official Draft and Revised Comments, 1980], quoting from the Final Report of the National Commission on Reform of Federal Criminal Laws — Proposed New Federal Criminal Code [18 USC] [Jan. 7, 1971]). "Under this formulation, extreme emotional disturbance will not reduce murder to manslaughter if the actor has intentionally, knowingly, recklessly, or negligently brought about his own mental disturbance, such as by involving himself in a crime" (ALI Model Penal Code and Commentaries § 210.3, at 64 [Official Draft and Revised Comments, 1980]; emphasis added).

    42

    Thus, it must be concluded that in enacting the affirmative defense, the Legislature did not intend it to apply where the emotional stress arises out of and is directly related to the commission of an armed violent felony, such as robbery in the first degree. Obviously, a person committing an armed robbery may be acting under extreme emotional stress which might overwhelm him and cause him to lose self-control. According to the psychiatric testimony, that is precisely what happened in this case.

    43

    The defense psychiatrist described defendant as mildly retarded with several pronounced personality disorders, including schizophrenia. However, the defense psychiatrist testified that defendant was not psychotic on the day of the robbery and shooting. He further testified that defendant was not "legally insane", "[b]ecause * * * up until the firing of the gun, he knew what he was doing". The defense psychiatrist opined: "[W]hat I saw, was a man who knew what he was doing, but was overwhelmed by tremendous strain, and the reaction was automatic, but he knew what he was doing up until the time he started firing the weapon" (emphasis added).

    44

    The psychiatrist gave the following further responses on redirect examination:

    45

    "Q. You have referred to emotional strain and stress and pressure. Can you be specific as to your opinion of what those pressures were at the moment that [defendant] shot the gun? What were the pressures confronting him?

    "A. The pressures of being out of work, of knowing that he had done something bad, something wrong.

    "Q. When you say, `done something wrong' —

    [473] "A. The robbery, not knowing what to do about it, and being confronted with a police officer, I believe it was overwhelming to him."

    46

    The testimony does not describe a significant mental trauma that has affected the defendant's mind for a substantial period of time, simmering in the unknown subconscious and then coming to the fore (see, People v Patterson, 39 N.Y.2d 288, 303, supra). Nor can such a result properly be achieved, in my view, by linking the situation which led to the commission of the armed robbery with the alleged "detached, isolated explosive episode" which according to the defense psychiatrist prevented defendant from reflecting upon his actions at the time of the shooting.

    47

    Defendant's actions at the time of the robbery and his subsequent shooting at the police officer were not bizarre so as to add credible support to the claim of extreme emotional disturbance, unrelated to defendant's own culpable conduct (cf. People v Moye, supra). Once defendant had decided to rob the liquor store (assuming it was a spur of the moment decision), it is not disputed that he calmly committed the crime. Afterwards, he walked from the store, turned left, but upon changing his mind, he turned around and walked back past the store, motioning to the store owner, apparently to stay inside the store. Defendant then proceeded for a distance of about one-quarter mile before he was stopped by the police. Any hesitation by the defendant during his shooting encounter with the police was clearly associated by the defense psychiatrist with the situation in which defendant found himself, knowing he had "done something bad, something wrong". Moreover, I cannot see any significance in defendant's statement, made to the Spanish-speaking police officer the day after the shooting, in substance, that he still suffered some residual effects from eating some toxic fruit as a youngster in Santo Domingo. The defense psychologist testified concerning this long past incident, allegedly involving some unknown fruit with hallucinogenic properties, as related to him, not by the defendant, but by defendant's brother; but there was no documentation of such an alleged event. Nor did the experts proffered by defendant link the alleged incident with the robbery or the shooting. The defense psychiatrist never attempted to relate this "fruit of a poisoned tree" to defendant's mental state at the time of the shooting. In fact, the psychiatrist never mentioned the toxic fruit incident at all in his testimony. Further, I simply cannot agree with my colleagues [474] in the majority that defendant, who engaged in a shoot-out with the police officer after he had committed an armed robbery, was entitled to a charge as to extreme emotional disturbance because he had been unemployed for a period of nine months prior to the crime and allegedly suffered from an "inadequate fragile personality".

    48

    Accordingly, it cannot be said that there was sufficient credible evidence which would warrant a charge to the jury on the affirmative defense of extreme emotional disturbance (compare, People v Walker, 64 N.Y.2d 741, with People v Moye, 66 N.Y.2d 887, supra).

    49

    Finally, it is noteworthy that as a result of the testimony of the defense psychiatrist that defendant "could not formulate an intent to harm the officer" and that his behavior in shooting at the officer was "a detached, isolated explosive episode * * * having no purpose or prethinking at all", the trial court charged the jury with respect to the count of attempted murder, as to the lesser included offenses of attempted aggravated assault upon a police officer, attempted assault in the first degree, and reckless endangerment in the first degree. Thus, the jury was permitted to consider lesser degrees of the crime of attempted murder in the first degree and thereby exercise an appropriate degree of leniency, if it had been so inclined, in accord with the facts as presented in this case.

    50

    Judgment of the County Court, Westchester County, rendered December 12, 1981, modified, on the law, by reversing the conviction of attempted murder in the first degree, and the sentence imposed thereon is vacated. As so modified, judgment affirmed and new trial ordered as to the count of attempted murder in the first degree.

    51

    [1] Defendant came to this country in 1979 from Santo Domingo and could speak very little English.

    52

    [2] The record does not disclose precisely when the insanity defense was withdrawn, but following the court's charge to the jury, defense counsel indicated that the insanity defense was withdrawn "long ago".

  • 8 People v. Minor

    1
    111 A.D.3d 198 (2013)
    2
    973 N.Y.S.2d 43
    3
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
    v.
    KENNETH MINOR, Appellant.
    4
    3651/09, 10291.
    5

    Appellate Division of the Supreme Court of New York, First Department.

    6
    Decided October 3, 2013.
    7

    [200] Lawrence Fleischer, New York City (Daniel J. Gotlin and David S. Delbaum of counsel), for appellant.

    8

    Cyrus R. Vance, Jr., District Attorney, New York City (Gina Mignola and Hilary Hassler of counsel), for respondent.

    9

    GONZALEZ, P.J., SWEENY and CLARK, JJ., concur.

    10
    OPINION OF THE COURT
    11
    RICHTER, J.
    12

    The facts of this case are largely undisputed. On the morning of July 16, 2009, the decedent was found stabbed to death in his car in upper Manhattan. Although the police initially believed he had fallen prey to a violent robbery, they later discovered that he had traveled to Manhattan for the express purpose of finding someone to kill him. Because of mounting financial troubles, the decedent had devised a plan to end his life so that his family could receive his life insurance proceeds.

    13

    The evidence at trial consisted primarily of defendant's statement to the police made after his arrest. Defendant told the police that he met the decedent on a street in upper Manhattan. The decedent invited defendant into his car, told defendant about his financial problems and asked defendant to kill him. The decedent explained that it needed to look like a robbery so his family could get the life insurance benefits. The decedent told defendant to open up the glove compartment where defendant saw a knife. The decedent instructed defendant to hold the knife against the steering wheel with the blade facing the decedent. The decedent then leaned forward into the knife several [201] times, told defendant to move the knife over, and the decedent leaned forward into the knife a couple of more times. At that point, the decedent was alive, and defendant left the car.

    14

    At trial, both the People and the defense agreed that the decedent sought defendant's assistance to help him accomplish his goal of ending his life and making it look like he was killed. The only real dispute involved the manner in which the knife wounds were inflicted. The People's medical expert testified that the nature of the decedent's wounds was inconsistent with defendant's account, and that it was defendant who stabbed the decedent. To counter this evidence, the defense presented expert testimony from a forensic pathologist who testified that he could not rule out the possibility that the decedent had impaled himself on a knife held by defendant against the steering wheel.

    15

    Prior to deliberations, the trial court instructed the jury on the elements of murder in the second degree. With no objection from the People, the court also charged the affirmative defense of assisted suicide.[1] A person is guilty of murder in the second degree when "[w]ith intent to cause the death of another person, he causes the death of such person" (Penal Law § 125.25 [1]). The statute further provides that "it is an affirmative defense that ... defendant's conduct consisted of causing or aiding, without the use of duress or deception, another person to commit suicide" (Penal Law § 125.25 [1] [b]). The standard criminal jury instruction (CJI) mirrors the words of the statute (see CJI2d[NY] Penal Law § 125.25 [1] [b]).

    16

    In its final instructions, the court went substantially beyond the statutory language and the CJI charge, telling the jury that:

    17

    "If the defendant intentionally aided [the decedent] in taking his own life or if the defendant encouraged or advised [the decedent] to take his own life, that's assisted suicide.

    "However, if the defendant actively caused [the decedent's] death even with [the decedent's] consent, then that's not assisted suicide because the consent of the victim is not a defense to murder" (emphasis added).

    18

    [202] During deliberations, the jury sent out a note asking for the definition of the word "active." Defendant, who had objected to the wording of the original charge, and in particular to the passive-active distinction created by the court, objected to further defining the term. Defendant instead asked the court to simply read the standard CJI charge, which had been defendant's position when the charge was first given. The court rejected defendant's request, and instructed the jury that "active" means "[d]oing something, carrying out an actual process, or carrying out by involvement, energy or action."

    19

    On appeal, defendant's principal argument is that the court's initial and supplemental charges misstated the law on the assisted suicide affirmative defense. "In considering a challenge to a jury instruction, the `crucial question is whether the charge, in its entirety, conveys an appropriate legal standard and does not engender any possible confusion'" (People v Hill, 52 AD3d 380, 382 [1st Dept 2008], quoting People v Wise, 204 AD2d 133, 135 [1st Dept 1994], lv denied 83 NY2d 973 [1994]). Where the court's charge creates undue confusion in the minds of the jurors, reversal is warranted (Hill, 52 AD3d at 382; People v Rogers, 166 AD2d 23 [1st Dept 1991], lv denied 78 NY2d 1129 [1991]). Moreover, "each time a judge declines to employ the carefully thought-out measured tone of the standard jury charge in favor of improvised language, an additional risk of reversal and a new trial is created" (Hill, 52 AD3d at 382 [internal quotation marks omitted]). Thus, "the better practice for the trial courts is, when feasible, to utilize the charges contained in the Criminal Jury Instructions" (People v King, 85 AD3d 412, 413 [1st Dept 2011], lv denied 18 NY3d 925 [2012]).

    20

    Guided by these principles, we believe that the court's charge was error. The trial presented two starkly different scenarios of the decedent's death. Under the People's version, defendant stabbed the decedent as he lay prone in the seat of his car. Under defendant's version, the decedent impaled himself on a knife held by defendant. We agree with the People that their version, if accepted, would constitute murder, not assisted suicide. If the decedent took no part whatsoever in the ultimate act that led to his death, it cannot be characterized as suicide, even if the record shows the decedent wanted to die. In this regard, we find that the jury's verdict convicting defendant of murder was based on legally sufficient evidence and was not [203] against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). The testimony of the People's medical expert provided ample proof that defendant repeatedly stabbed the decedent. Based on this evidence, the jury was entitled to reject defendant's claim that he merely held the knife.

    21

    But the jury was also free to accept defendant's account of events. Under that version, a jury could have found that the decedent committed suicide because he committed the final overt act that caused his death, i.e., thrusting himself into the knife. Notably, the People did not argue below that defendant's version, if believed, would not satisfy the affirmative defense to murder. In fact, the record shows that the People acquiesced to the defense being charged, and they do not argue otherwise on appeal. The People made no objection to the charge, and in fact offered their own proposed language to the court. The trial court determined that defendant's version supported the assisted suicide defense because it decided to give the charge (see People v Taylor, 80 NY2d 1, 12 [1992] ["court must charge the jury on any claimed defense that is supported by a reasonable view of the evidence"]).

    22

    Under these circumstances, the portion of the court's instruction that the assisted suicide defense is not made out if defendant "actively" caused the decedent's death, along with the expansive definition of the word "active" given in the supplemental charge, was confusing and conveyed the wrong standard. Neither the word "active," nor its antonym "passive," appears in the statutory language and thus, by giving this charge, the court added an element that is not part of the defense. Moreover, although sparse, the legislative history of the current statute supports the view that the assisted suicide defense allows for at least some "active" assistance to one who commits suicide. The affirmative defense of assisted suicide was added as part of the 1965 overhaul of the Penal Law. As originally proposed by the Commission on Revision of the Penal Law and Criminal Code, the statute defined the assisted suicide defense as "causing or aiding a suicide ... [without the use of] force, duress or deception" (Staff Notes of Temp St Commn on Rev of Penal Law and Crim Code, 1964 Proposed NY Penal Law [Study Bill, 1964 Senate Intro 3918, Assembly Intro 5376] § 130.25 [1] [b] at 76-77 [emphasis added]). Thus, under the proposed law, a person who used force, duress or deception in aiding a suicide could still be prosecuted for murder. In enacting the current [204] statute, the legislature rejected the Commission's proposal and removed the word "force," retaining only the phrase "without the use of duress or deception" (Penal Law § 125.25 [1] [b]). Although the legislative history is silent as to why the word "force" was removed, it suggests that the legislature contemplated some active conduct within the scope of the assisted suicide defense.

    23

    Likewise, the fact that assisted suicide exists as an affirmative defense to murder shows that active conduct could be included in the defense. The jury was required to consider the affirmative defense only upon finding that defendant intentionally caused the decedent's death, which necessarily means that defendant engaged in some active conduct that caused the death. But the court's instruction advised the jury that if defendant actively caused the decedent's death, he was not entitled to the affirmative defense. Such a circular instruction was confusing, and could have led the jury to conclude that if they found intentional murder, the affirmative defense was not applicable. By using the phrase "actively caused," the court effectively thwarted the affirmative defense and mandated a directed verdict of guilt.

    24

    The court's error was compounded by its overly broad definition of the term "active." The court told that jury that "active" meant "[d]oing something, carrying out an actual process, or carrying out by involvement, energy or action." The affirmative defense exists to protect from murder charges those who assist others to commit suicide. A person obviously cannot provide assistance to one committing suicide without "doing something." Under this expansive definition, the jury might well have believed that any of defendant's actions, under his version of events, constituted "actively causing" the decedent's death.[2] Thus, the jury could have been confused into thinking that defendant's taking the knife out of the glove compartment, or holding the knife, would constitute murder and not assisted suicide, a position the People did not take at trial.

    25

    We disagree with the People's assertion that the words of the statute lacked sufficient guidance. There is nothing confusing or unclear about the words "aiding ... another person to [205] commit suicide." The ordinary meaning of the term "aid" is to help or assist and encompasses both active and passive assistance. And where the language of a statute is plain, courts should "construe words of ordinary import with their usual and commonly understood meaning" (Rosner v Metropolitan Prop. & Liab. Ins. Co., 96 NY2d 475, 479 [2001]; see McKinney's Cons Laws of NY, Book 1, Statutes § 94). By adding words not chosen by the legislature, the court effectively rewrote the statute, and imposed a greater burden on defendant than the statute required. Moreover, if the jury needed additional guidance after being given the standard charge, it could have requested it.

    26

    The People do not argue that the error here was harmless nor could such an argument be made because defendant's entitlement to the affirmative defense was the central issue at trial. Under the circumstances, the error in the court's charge, which was objected to, resulted in significant prejudice to defendant because it essentially gutted his defense (see People v Soriano, 36 AD3d 527, 529 [1st Dept 2007] [error in charge not harmless where point at issue went to the heart of the proffered defense]).

    27

    The court properly denied defendant's motion to dismiss the indictment and order the People to resubmit the case to a new grand jury on the basis of evidence discovered after the indictment was filed. CPL 190.75 (3), upon which defendant relies, authorizes resubmission only when the grand jury has dismissed a charge. Since no charge was dismissed by the grand jury, CPL 190.75 (3) is inapplicable.

    28

    To the extent defendant argues that the People should have charged the grand jury on the assisted suicide affirmative defense, that claim is unpreserved. In his letter-motion seeking to compel the People to resubmit the case, defendant asked only that a second grand jury consider charges of manslaughter in the second degree and promoting a suicide attempt. Defendant never asked that a new grand jury be instructed on the affirmative defense of assisted suicide. We decline to reach the issue in the interest of justice because even defendant acknowledges in his appellate brief that, at the time of the grand jury presentation, his account "seemed farfetched and self-serving."

    29

    As an alternative holding, we would reject defendant's claim on the merits. Even if defendant's statement to the police could be read as supporting the assisted suicide affirmative defense, the People had no obligation to instruct the grand jury on that defense. It is well-settled that a prosecutor is not [206] required to present mitigating defenses to a grand jury (People v Harris, 98 NY2d 452, 475 [2002]; People v Valles, 62 NY2d 36, 38-39 [1984]). Whether or not a particular defense should be charged "depends upon its potential for eliminating a needless or unfounded prosecution" (Valles, 62 NY2d at 38). "Unlike exculpatory defenses, which may result in a finding of no criminal liability, mitigating defenses only reduce the gravity of the offense committed" (Harris, 98 NY2d at 475; accord Valles, 62 NY2d at 39). Here, even if defendant's statement satisfied the affirmative defense, it would not eliminate a "needless or unfounded prosecution," but instead would warrant prosecution for the manslaughter crime of assisted suicide (see Penal Law § 125.15 [3] [defining manslaughter as intentionally causing or aiding another person to commit suicide]).

    30

    In concluding that the conviction should be reversed, we recognize that the manner in which the decedent died is disturbing. But the People, at trial and on appeal, acknowledge that the decedent was looking for someone to help him end his life, and this appeal does not raise the question of whether the assisted suicide charge should have been given at all. Nor is there any support in the statutory language or case law for the People's view that the assisted suicide defense applies only to sympathetic situations. It is the role of the jury, not this Court, to determine whether defendant's or the People's version is the correct one, and whether the defense is borne out by the evidence. Because the jury's decision must be based on a proper legal instruction, a new trial is warranted.

    31

    In light of our decision to reverse the judgment, we need not reach defendant's claim that the trial court unduly limited his direct examination of the defense expert witness.

    32

    Accordingly, the judgment of the Supreme Court, New York County (Carol Berkman, J.), rendered April 4, 2011, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 20 years to life, should be reversed, on the law, and the matter remanded for a new trial.

    33

    Judgment, Supreme Court, New York County, rendered April 4, 2011, reversed, on the law, and the matter remanded for a new trial.

    34

    [1] At the charge conference, the court initially expressed some doubts about whether it should give the affirmative defense charge, but agreed to do so because "the People are really jumping up and down." Thus, the record supports the conclusion that the People fully agreed with the decision to charge the defense.

    35

    [2] The broad definition given by the court in its supplemental charge could cover conduct such as opening a bottle of pills for a terminally ill family member since such conduct would fall within the phrase "carrying out an actual process." Yet this is exactly the type of situation the People suggest the defense was intended to cover.

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