You are here: / Depraved Indifference Murder Convictions Stemming from Outrageously Reckless...

Search Results

/

Depraved Indifference Murder Convictions Stemming from Outrageously Reckless Driving While Intoxicated Upheld

In a full-fledged opinion by Judge Lippman, the Court of Appeals determined that the unusually egregious circumstances of the three cases before them, all resulting in convictions for depraved indifference murder stemming from outrageously reckless driving while intoxicated, supported the depraved-indifference-murder verdicts.  Because of the fact-specific nature of the analysis, the relevant facts of one of the three cases are provided here:

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.   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.  People v Heidgen…, 174, 175, 176, CtApp 11-21-13

 

/

Good Time Credit Should Be Deducted From the Two-Year Sentence Cap Imposed Under Penal Law 70.30 (2) (b), Not from the Longer Aggregate Term to Which the Two-Year Statutory Cap Was Applied

In a full-fledged opinion by Judge Abdus-Salaam, the Court of Appeals determined that where aggregate one-year consecutive sentences are capped at 2 years pursuant to Penal Law section 70.30 (2) (b), jail time and good time credits should be applied to the two-year period, not the longer aggregate term on which the two-year cap was imposed:

Having determined that Penal Law § 70.30 (2) (b) imposes a two-year aggregate term of imprisonment, we turn to whether this two-year aggregate term may be reduced by jail time and good time credit a prisoner has earned while incarcerated.  Penal Law § 70.30 (3) (b) and (4) (b) provide that, where a prisoner is serving consecutive definite sentences, jail time and good time credit must be applied against the prisoner’s aggregate term of imprisonment (see Penal Law § 70.30 [3] [b]; [4] [b] [emphasis added]), although good time credit may not exceed one third of that aggregate term (see id. at [4] [b]; Correction Law § 804 [1]).

Considering these directives together with section 70.30 (2) (b), it follows that, in cases where the two-year limit on consecutive definite sentences applies, jail time and good time credit must be applied against the two-year aggregate term rather than the aggregate term imposed by the sentencing court. Under such circumstances, correctional authorities should calculate the time to be served under the sentences by reducing the two-year aggregate term by the available jail time credit and any good time credit that does not exceed 243 days (or one-third of the two-year aggregate term) (see Penal Law § 70.30 [3] [b]; [4] [b]).  People ex rel Ryan… v Cheverko…, 183, CtApp 11-21-13

 

/

People Should Not Have Been Allowed to Reopen Pretrial Suppression Hearing

In a full-fledged opinion by Judge Read, the Court of Appeals determined the People should not have been allowed to reopen a suppression hearing and present additional evidence after the hearing officer had ruled the seized evidence, including a handgun, must be suppressed.  The key inquiry is whether the People had a full and fair opportunity to present evidence of the dispositive issues at the hearing.  If so, the hearing cannot be reopened, either after trial (on remand after an appeal) or, as in this case, at the pretrial stage:

In People v Havelka (45 NY2d 636 [1978]), we held that the People, if afforded a full and fair opportunity to present evidence of the dispositive issues at a suppression hearing, are not entitled to a remand after appeal for a reopened hearing.  We hold that the principles underlying Havelka have equivalent force in the pretrial setting, and preclude a trial judge from reopening a suppression hearing to give the People an opportunity to shore up their evidentiary or legal position absent a showing that they were deprived of a full and fair opportunity to be heard. People v Kevin W, 187, CtApp 11-21-13

 

/ ,

Plea Allocution Negated Essential Element of Offense/Error, though Unpreserved, Required Reversal

The Court of Appeals reversed defendant’s conviction because the plea colloquy negated an essential element of the offense.  The defendant pled guilty to rape 3rd (Penal Law 130.25(3)), the so-called “date rape” statute. The statute requires a lack of consent by the victim, not a lack of capacity to consent (caused by drugs, for example). The plea allocution indicated only a lack of capacity to consent.  Even though the error was not preserved, the Court of Appeals determined the case fell within the narrow exception to the preservation requirement recognized in Lopez (71 NY2d at 666) where the court fails to ensure the guilty plea is knowing and voluntary:

Penal Law § 130.25 (3) addresses “so-called date rape or acquaintance rape situations [where] there [might] be consent to various acts leading up to the sexual act, but at the time of the act, the victim clearly says no or otherwise expresses a lack of consent” … .  Accordingly, the statutory provision requires the victim to have “clearly expresse[d] an unwillingness to engage in the sexual act in such a way that a neutral observer would have understood that the victim was not consenting” … .

Despite the statute’s plain terms, questions posed by the prosecutor during the brief colloquy indicate an intention to elicit from defendant that the complainant was unable to consent because she was incapacitated.  Moreover, the court’s single query during the factual allocution suggests that the court similarly misunderstood that key element of the crime.  In an apparent attempt to establish a causal relationship between thr complainant’s incapacity and her lack of consent, the court asked defendant, “[a]nd [the complainant] didn’t give you consent because she took too much medication and she has a mental illness, correct?”  By answering in the affirmative, defendant unequivocally negated an element of the crime to which he was pleading guilty.  People v Worden, 203, CtApp 11-21-13

 

/ ,

No Private Right of Action Against Bank for Failure to Comply with Exempt Income Protection Act (CPLR Article 52)

In answering certified questions from the Second Circuit, the Court of Appeals, in a full-fledged opinion by Judge Graffeo, determined a judgment debtor does not have a private right of action against a bank which, when served with a restraining notice by a judgment creditor, fails to forward the appropriate forms to the judgment debtor as required by the Exempt Income Protection Act (EIPA).  The forms alert the judgment debtor to the restraining notice, describe funds which are exempt from restraint, and provide information about seeking vacatur of the money judgment.  The court wrote:

…[A] private right to bring a plenary action for injunctive relief and money damages cannot be implied from the EIPA — and we therefore answer the first certified question in the negative.  As for the second certified question, a judgment debtor can secure relief from a bank arising from a violation of the EIPA in a CPLR Article 52 special proceeding… .  And our determination that the legislation created no private right of action compels the conclusion that the statutory mechanisms for relief are exclusive.  Banks had no obligation under the common law to forward notices of exemption and exemption claim forms to judgment debtors.  It therefore follows that any right debtors have to enforce that obligation, among others imposed under CPLR 5222-a, arises from the statute and, since the EIPA does not give rise to a private right of action, the only relief available is that provided in CPLR Article 52 … . Cruz v TD Bank NA…, 191, CtApp 11-21-13

 

/

A Prank Played Upon Defendant Driver by a Passenger Warranted Instructing the Jury on the Emergency Doctrine

The Second Department, over a dissent, determined the trial court properly charged the jury on the emergency doctrine.  A jury found that the defendant was not negligent in the operation of her vehicle. A passenger in defendant’s car had pulled the string on her bikini top causing the top to fall off.  The court wrote:

In assessing the propriety of whether to instruct a jury on the emergency doctrine, the trial court must “make the threshold determination that there is some reasonable view of the evidence supporting the occurrence of a qualifying emergency’” … . “Only then is a jury instructed to consider whether a defendant was faced with a sudden and unforeseen emergency not of the actor’s own making and, if so, whether [the] defendant’s response to the situation was that of a reasonably prudent person” … . “The emergency instruction is, therefore, properly charged where the evidence supports a finding that the party requesting the charge was confronted by a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration’” … .

Here, “[v]iewing the evidence in the light most favorably toward giving the requested emergency doctrine instruction to the jury” … , based upon [defendant’s] testimony, there is a reasonable view of the evidence that her conduct was the product of a “ sudden and unexpected circumstance’” … . Contrary to our dissenting colleague’s determination, [defendant’s] general awareness that …a passenger in her vehicle…had engaged in certain distracting conduct while in the car would not preclude a jury from deciding that [defendant] did not anticipate that he would suddenly pull the strings on her bikini top, thereby causing the top to fall and her breasts to be exposed … . It was for the jury to find whether [defendant] was faced with a sudden and unforeseen emergency not of her own making and, if so, whether her response to the situation was that of a reasonably prudent person… .  Pelletier v Lahm, 2013 NY Slip Op 07718, 2nd Dept 11-20-13

 

/

Question of Fact Re: Plaintiff’s Comparative Fault Precludes Summary Judgment—Supreme Court Erroneously Granted Summary Judgment to Plaintiff “To the Extent … Defendant Is Liable”

In a personal injury case involving a collision between defendant’s car and plaintiff’s bicycle, the Second Department determined that summary judgment should not have been granted to the plaintiff because there existed a question of fact about plaintiff’s comparative negligence.  Supreme Court had granted summary judgment to the plaintiff “to the extent that the defendant is liable:”

In a personal injury action, to prevail on a motion for summary judgment on the issue of liability, a plaintiff has the burden of establishing, prima facie, not only that the defendant was negligent, but that the plaintiff was free from comparative fault …, since there can be more than one proximate cause of an accident … . Thus, the issue of the defendant’s liability, a component of which is the apportionment of fault …, cannot be determined as a matter of law until it is decided whether any culpable conduct on the plaintiff’s part contributed to the happening of the accident. For this reason, the Supreme Court order granting the plaintiff’s motion “to the extent that the defendant is liable,” while directing that the “plaintiff’s comparative negligence, if any, shall be decided by a jury,” was internally inconsistent.  Lanigan v Timmes, 2013 NY Slip Op 07711, 2nd Dept 11-20-13

 

/ ,

Complaint Did Not State a Cause of Action Against City for Negligent Failure to Provide Emergency Medical Services—No “Special Relationship” Alleged

The Second Department determined a complaint against the City alleging a negligent failure to provide emergency services (resulting in the death of plaintiff’s decedent) should have been dismissed.  The court explained that the criteria for a “special relationship” with the city with respect to responding to a call for medical help had not been met:

As a general rule, “a municipality may not be held liable to a person injured by the breach of a duty owed to the general public, such as a duty to provide police protection, fire protection or ambulance services” … . There is, however, a “narrow class of cases in which [the courts] have recognized an exception to this general rule and have upheld tort claims based upon a special relationship’ between the municipality and the claimant” … . Such special relationship imposes a specific duty upon the municipality to act on behalf of the claimant … . As articulated by the Court of Appeals in Cuffy v City of New York, “[t]he elements of this special relationship’ are: (1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking”… .

Here, the complaint fails to allege any facts tending to show that there was any “direct contact” between the decedent and the defendants or that there was any “justifiable reliance” on any promise made to the decedent by the defendants. Accordingly, the complaint does not state facts from which it could be found that there was a special relationship between the decedent and the defendants necessary to assert a negligence cause of action against the defendants … . In the absence of any allegation of such a relationship, the complaint cannot state a viable cause of action against the City based on its alleged negligence in failing to send an ambulance to the decedent’s home.  Freeman v City of New York, 2013 NY Slip Op 07707, 2nd Dept 11-20-13

 

/ ,

“Filed Rate Doctrine” Precluded Lawsuit Alleging Unreasonable Premium

In a full-fledged opinion by Justice Skelos, the Second Department determined the “filed rate doctrine” precluded a lawsuit alleging an insurance premium (re: the employment of uninsured subcontractors) was unreasonable. The action was brought before the premium was paid.  For that reason, the court dismissed the unjust enrichment and breach of contract causes of action (which require damages), noting that the proper action was one seeking a declaratory judgment. In determining the General Business Law section 349 action was properly dismissed, the Second Department explained, in great detail which cannot be fairly summarized here, the “filed rate doctrine:”

The filed rate doctrine bars actions against federal- and state-regulated entities which are “grounded on the allegation that the rates charged by [those entities] are unreasonable” … . “Simply stated, the doctrine holds that any filed rate’—that is, one approved by the governing regulatory agency [here, the Insurance Department]—is per se reasonable and unassailable in judicial proceedings brought by ratepayers” … . Thus, “a consumer’s claim, however disguised, seeking relief for an injury allegedly caused by the payment of a rate on file with a regulatory commission, is viewed as an attack upon the rate approved by the regulatory commission” and, therefore, barred by the doctrine … .  W Park Assoc Inc v Everest Natl Ins Co, 2013 NY Slip Op 07724, 2nd Dept 11-20-13

 

/

Family Court Should Not Have Terminated Parental Rights (After an Alleged Violation of a Drug-Treatment Condition of a Suspended Judgment) Without Holding the Necessary Hearings

The Second Department sent the matter back to Family Court for a hearing on whether the parents (after a finding of permanent neglect) violated the drug-treatment condition of a suspended judgment, and, if warranted, a new dispositional hearing with respect to the termination of parental rights. Family Court, based solely on documents from DSS, determined the parents had violated the drug-treatment condition of the suspended judgment, and, on that ground, had terminated the parents’ parental rights without any hearings:

Upon a finding of permanent neglect, the Family Court may suspend judgment, “during which time the parents must comply with terms and conditions that relate to the adjudicated acts or omissions of the parents which led to the finding of [permanent] neglect” (…see Family Ct Act §§ 631[b]; 633). By enacting Family Court Act §§ 631(b) and 633, the Legislature vested the Family Court with discretion to give a parent of a permanently neglected child a second chance before terminating the parent’s parental rights … . If a parent fails to comply with the terms and conditions of a suspended judgment, “a motion or order to show cause seeking the revocation of the order” suspending judgment “may be filed,” and “if, after a hearing or upon the respondent’s admission, the court is satisfied that the allegations of the motion or order to show cause have been established and upon a determination of the child’s best interests, the court may modify, revise or revoke the order of suspended judgment” (22 NYCRR 205.50[d][1], [5] [emphasis added]). “The Family Court may revoke a suspended judgment after a violation hearing if it finds, upon a preponderance of the evidence, that the parent failed to comply with one or more of its conditions” … . * * *

…[E]ven if the Family Court had conducted a hearing on the DSS’s motion to hold the parents in violation of the drug-treatment condition, and had determined that the violations had been established by a preponderance of the evidence, the Family Court was required to conduct an inquiry into the children’s best interests before terminating the parents’ parental rights … . Although a separate dispositional hearing is not always required in a proceeding to enforce a suspended judgment where the violation hearing or prior proceedings established that the court was aware of and considered the children’s best interests …, this is not such a case … . The Family Court conducted no hearing at all on the motion to hold the parents in violation of the drug-treatment condition, and the record does not otherwise show that the Family Court made an inquiry into or adequately considered the best interests of the children in terminating the parents’ parental rights.  Matter of Timmia S, 2013 NY Slip Op 07739, 2nd Dept 11-20-13

 

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