Defendant Cannot Be Convicted of Both Intentional and Depraved Indifference Murder Where there Is a Single Victim/”Transferred Intent” Theory Explained and Applied/Insufficient Evidence Defendant Intimidated a Witness—the Witness’ Grand Jury Testimony Should Not Have Been Admitted

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a partial dissent, resolved a split among the departments and determined a defendant cannot be convicted of both intentional murder and depraved indifference murder where there is a single victim. It was alleged that the defendant fired his weapon at one person, but killed an uninvolved bystander who was several buildings away. The trial judge submitted both the intentional and depraved indifference murder theories to the jury in the conjunctive (not in the alternative). Defendant was convicted of both offenses. The Court of Appeals’ analysis turned on “transferred intent.”  Conviction under New York’s “transferred intent” theory requires the jury to conclude the defendant acted intentionally.  Intentional murder, even where “transferred intent” is involved, is incompatible with depraved indifference murder, which is, by definition, not intentional. Where there is a single victim, only one or the other mental state can apply, not both. The Court of Appeals further determined the trial court erred when it allowed in evidence the grand jury testimony of a witness who refused to testify, purportedly out of fear. There was not sufficient evidence connecting the defendant to any actions or words aimed at instilling fear in the witness.  A new trial was ordered for the intentional, depraved indifference and attempted murder counts:

The purpose of the transferred intent theory is “to ensure that a person will be prosecuted for the crime [that person] intended to commit even when, because of bad aim or some other ‘lucky mistake,’ the intended target was not the actual victim” … . Given this stated goal, the Court has cautioned that transferred intent “should not be employed to ‘multiply criminal liability, but to prevent a defendant who has committed all the elements of a crime (albeit not upon the same victim) from escaping responsibility for that crime” … . Hence, it should be applied where a defendant “could not be convicted of the crime because the mental and physical elements do not concur as to either the intended or actual victim” … .

… Whether based on the defendant’s conscious objective towards the intended victim, or on a transferred intent theory directed at a different, and actual, victim, defendant’s conviction depends on a jury finding that defendant harbored the requisite intentional mental state. Defendant cannot then also be guilty of the same murder premised on a depraved state of mind.

That the People had at their disposal two bases by which to establish the requisite state of mind — transferred intent and depraved indifference — does not permit the People to seek multiple convictions for the one murder for which the defendant was charged, prosecuted and tried. To hold otherwise is contrary to “the basic principle that a defendant should not be convicted and punished more than once for conduct which, although constituting only one prohibited act, may because of statutory definition, be theorized as constituting separate criminal acts” … . Under New York law, defendant is held accountable for the murder he committed, even if it was not the one he set out to complete (Penal Law 125.25 [1]). People v Dubarry, 2015 NY Slip Op 02865, CtApp 4-7-15