DEFENDANT WAS CONVICTED OF SECOND DEGREE MURDER (DEPRAVED INDIFFERENCE) AND FIRST DEGREE MANSLAUGHTER (RECKLESS) FOR THE DEATH OF A SEVERELY ABUSED CHILD; THE EXTENSIVE DISCUSSIONS OF THE “DEPRAVED INDIFFERENCE” ELEMENT BY THE MAJORITY AND DISSENT ILLUSTRATE THE DIFFICULTY OF PROVING BOTH “DEPRAVITY” AND “INDIFFERENCE” (THIRD DEPT).

The Third Department, affirming defendant’s second degree murder (depraved indifference) and first degree manslaughter (reckless) convictions for the death of a severely abused child, over an comprehensive dissent, determined the facts supported the “depraved indifference” element. The dissent disagreed:

Contrary to defendant’s contentions, the fact that he began immediate life-saving measures on the victim and called his wife to summon medical aid does not dictate a different result. Rather “[t]he People were required to show that defendant had the necessary mens rea of callous indifference when the crime occurred, not at all times thereafter” … . Thus, where the defendant is the one who inflicted the fatal injuries, the sincerity and motivation behind post-injury rescue efforts distill to “implicated credibility questions for the jury to resolve” … . We find no reason to disturb the jury’s finding that defendant’s “belated expressions of concern did not reflect any [genuine] interest in the victim’s welfare” … .

From the dissent:

Ask 12 random people on the street to describe the mental state of someone who stomps on a young child’s stomach so hard that it kills him. Each will say something like, “cruel,” “brutal,” [*9]”monstrous” — maybe even “depraved” … . The jurors here rationally arrived at the same conclusion — and, indeed, “the horrific nature of defendant’s assault of the [victim] was clearly intended to be encompassed within the depraved indifference murder of a child statute” … .

But depravity is not enough. Depraved indifference to human life “is something even worse” … . To prove this rare state of mind, there must be evidence of “wanton cruelty, brutality, or callousness, combined with an utter indifference as to whether the victim lives or dies” … . That combination is not present here. Consequently, defendant’s conviction of depraved indifference murder must be reversed, and that count of the indictment dismissed. People v Greene, 2025 NY Slip Op 06931, Third Dept 12-11-25

Practice Point: “Depraved indifference” is a troublesome concept. How do the People prove both “depravity” and “indifference?” Consult this decision for an in-depth discussion.