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THE OPINION CHANGING THE CRITERIA FOR THE DEPRAVED-INDIFFERENCE MENS REA CAME DOWN BEFORE DEFENDANT’S CONVICTION BECAME FINAL; DESPITE THE AFFIRMANCE OF DEFENDANT’S MURDER CONVICTION ON APPEAL, THE DENIAL OF A MOTION TO REARGUE THE APPEAL, THE DENIAL OF THE MOTION FOR LEAVE TO APPEAL TO THE COURT OF APPEALS, AND THE DENIAL OF DEFENDANT’S PETITION FOR A WRIT OF HABEAS CORPUS IN FEDERAL COURT, SUPREME COURT SHOULD HAVE GRANTED DEFENDANT’S MOTION TO VACATE HIS CONVICTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to vacate his depraved-indifference murder conviction should have been granted. The Court of Appeals opinion which changed the proof requirements for the depraved indifference mens rea was issued before defendant’s conviction became final. The proof at defendant’s trial demonstrated defendant acted intentionally as opposed acting with “depraved indifference:”

… [T]he defendant moved pursuant to CPL 440.10(1)(h) to vacate so much of the judgment as convicted him of depraved indifference murder, arguing that, in light of People v Payne (3 NY3d 266), which was decided 15 days after this Court affirmed the judgment of conviction on his direct appeal but before his conviction became final (see Policano v Herbert, 7 NY3d at 593), the evidence at trial was legally insufficient to establish that he acted with the requisite mens rea for depraved indifference murder. The Supreme Court denied the motion without a hearing, as both procedurally barred by CPL 440.10(2)(a) and meritless. The court reasoned that the defendant’s legal sufficiency argument based on the change of law set forth in People v Payne had been addressed and rejected by this Court in denying the defendant’s motion for leave to reargue his direct appeal, by the Court of Appeals in denying the defendant’s motion for leave to appeal, and by the federal court in denying the defendant’s petition for a writ of habeas corpus. With respect to the merits of the defendant’s motion, the Supreme Court determined that, viewing the evidence in the light most favorable to the prosecution, the evidence was legally sufficient to support the jury’s verdict. * * *

… [T]he trial evidence was not legally sufficient to support a verdict of guilt of depraved indifference murder (see People v Payne, 3 NY3d at 272; People v Hernandez, 167 AD3d at 940). People v Illis, 2020 NY Slip Op 03535, Second Dept 6-24-20

 

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