You are here: / / THE 2015 COURT OF APPEALS DECISION WHICH PROHIBITED INSTRUCTING A JURY...

THE 2015 COURT OF APPEALS DECISION WHICH PROHIBITED INSTRUCTING A JURY THAT IT COULD FIND A DEFENDANT GUILTY OF BOTH DEPRAVED INDIFFERENCE MURDER AND INTENTIONAL (TRANSFERRED INTENT) MURDER OF A SINGLE VICTIM SHOULD NOT BE APPLIED RETROACTIVELY (SECOND DEPT).

The Second Department determined that a 2015 Court of Appeals decision holding that a jury cannot be instructed that it could find defendant guilty of both depraved indifference murder and intentional murder of a single victim should not be applied retroactively. Defendant was shooting at another when he struck and killed his accomplice:

In People v Dubarry (25 NY3d at 165), the Court of Appeals addressed “the novel question” of whether the defendant could be subject to multiple liability for a single homicide based on a theory of transferred intent. “The transferred intent theory, codified under Penal Law § 125.25(1), provides that where the resulting death is of a third person who was not the defendant’s intended victim, the defendant may nonetheless be held to the same level of criminal liability as if the intended victim were killed'” … . The Court in Dubarry concluded that the defendant “cannot be convicted of depraved indifference murder and intentional murder on a transferred intent theory in a case involving the death of the same person,” and, “[t]herefore, the trial court erroneously submitted to the jury both charges in the conjunctive rather than in the alternative” … . * * *

… Dubarry established new precedent and constitutes a new rule of law. Consequently, retroactivity analysis is required under this State’s rules … . “Whether a new rule of New York State law is to be given retroactive effect requires an evaluation of three factors: (1) the purpose to be served by the new rule, (2) the extent of reliance on the old rule, and (3) the effect on the administration of justice of retroactive application”… . “The second and third factors are, however, only given substantial weight when the answer to the retroactivity question is not to be found in the purpose of the new rule itself'” … . …

As to the first factor, the Court of Appeals in Dubarry clarified the proper application of the transferred intent theory, which should be employed, not 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” … . The Court’s purpose was to dispel confusion concerning the application of the separate mens rea of intent and depraved indifference to the same outcome … , and, similar to Policano, to make future homicide prosecutions more sustainable. Furthermore … , “nonretroactivity poses no danger of a miscarriage of justice” … . The other two Pepper factors also weigh in favor of nonretroactivity. … [T]hree of the departments of the Appellate Division permitted the submission of both intentional (transferred intent) and depraved indifference crimes in the conjunctive. Moreover, “[a]ffording retroactivity to [the] defendant would mean that every defendant to whose case it was relevant, no matter how remote in time and merit, would become [a] beneficiary'” … . People v Drayton, 2018 NY Slip Op 08323, Second Dept 12-5-18

CRIMINAL LAW (THE 2015 COURT OF APPEALS DECISION WHICH PROHIBITED INSTRUCTING A JURY THAT IT COULD FIND A DEFENDANT GUILTY OF BOTH DEPRAVED INDIFFERENCE MURDER AND INTENTIONAL (TRANSFERRED INTENT) MURDER OF A SINGLE VICTIM SHOULD NOT BE APPLIED RETROACTIVELY (SECOND DEPT))/DEPRAVED INDIFFERENCE MURDER (THE 2015 COURT OF APPEALS DECISION WHICH PROHIBITED INSTRUCTING A JURY THAT IT COULD FIND A DEFENDANT GUILTY OF BOTH DEPRAVED INDIFFERENCE MURDER AND INTENTIONAL (TRANSFERRED INTENT) MURDER OF A SINGLE VICTIM SHOULD NOT BE APPLIED RETROACTIVELY (SECOND DEPT))/TRANSFERRED INTENT  (THE 2015 COURT OF APPEALS DECISION WHICH PROHIBITED INSTRUCTING A JURY THAT IT COULD FIND A DEFENDANT GUILTY OF BOTH DEPRAVED INDIFFERENCE MURDER AND INTENTIONAL (TRANSFERRED INTENT) MURDER OF A SINGLE VICTIM SHOULD NOT BE APPLIED RETROACTIVELY (SECOND DEPT))

You might also like
Even Though the Appeal Had Been Rendered Moot, It Was Appropriate for the Appellate Court to Vacate the Underlying Order
BANK WHICH ISSUED A MORTGAGE TO A THIRD PARTY THAT WAS USED BY THE THIRD PARTY TO PAY OFF PLAINTIFF’S MORTGAGE IN VIOLATION OF THE REAL PROPERTY LAW WAS ENTITLED TO AN EQUITABLE LIEN AGAINST PLAINTIFF’S PROPERTY IN THE AMOUNT OF THE ORIGINAL MORTGAGE.
THE PURCHASERS BREACHED THE CONTRACT OF SALE BY INFORMING THE SELLER THEY WOULD NOT ATTEND THE “TIME OF THE ESSENCE” CLOSING; THEREFORE THE PURCHASERS ARE ENTITLED TO RETURN OF THEIR DEPOSIT (SECOND DEPT).
Defendant’s Flight Did Not Justify Police Pursuit and Entry Into Defendant’s Apartment—Evidence Properly Suppressed
FAMILY COURT ABUSED ITS DISCRETION BY DENYING THE REQUEST FOR AN ADJOURNMENT IN CONTEMPLATION OF DISMISSAL IN THIS JUVENILE DELINQUENCY PROCEEDING (SECOND DEPT).
IF A DEFENDANT CHALLENGES THE LEGALITY OF HIS ARREST, THE PEOPLE MUST PROVE THE ARREST WAS BASED UPON PROBABLE CAUSE; THE ISSUANCE OF AN I-CARD DEMONSTRATING PROBABLE CAUSE IS NOT, BY ITSELF, ENOUGH; THERE MUST BE TESTIMONY AT THE SUPPRESSION HEARING DEMONSTRATING THE ARREST WAS IN FACT BASED ON THE INFORMATION IN THE I-CARD (SECOND DEPT).
PLAINTIFF RECEIVED THE FULL BENEFIT OF A LOAN AGREEMENT; THE DOCTRINE OF EQUITABLE ESTOPPEL PRECLUDED PLAINTIFF’S CLAIM THE LOAN AGREEMENT IS UNENFORCEABLE BECAUSE THE UNDERLYING RECORDED MORTGAGE DID NOT BEAR HIS SIGNATURE (SECOND DEPT).
COURT SHOULD NOT HAVE CONVERTED THE MOTION TO DISMISS TO A MOTION FOR SUMMARY JUDGMENT, BANK’S LETTER SEEKING TO REVOKE THE ACCELERATION OF THE MORTGAGE BEFORE THE STATUTE OF LIMITATIONS FOR A FORECLOSURE ACTION RAN OUT WAS NOT DOCUMENTARY EVIDENCE UPON WHICH A MOTION TO DISMISS COULD BE BASED (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

DEFENDANT’S UNSUPPORTED ALLEGATION THAT PLAINTIFF STOPPED SUDDENLY WAS... DEFENDANT WAS DEPRIVED OF HIS RIGHT TO COUNSEL WHEN DEFENSE COUNSEL TOLD THE...