You are here: / MURDER

Tag Archive for: MURDER

Grossly Negligent and Reckless Driving Did Not Support Conviction for Depraved Indifference Murder

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a dissent, determined that the actions of the defendant, who killed a pedestrian during a police chase, did not meet the criteria for depraved indifference murder.  Although the defendant drove in a grossly negligent and reckless manner, there was evidence he took measures to avoid injuries to others and therefore was not indifferent to the effects of his actions:

A person is guilty of depraved indifference murder when, “[u]nder circumstances evincing a depraved indifference to human life [such person] recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person” (Penal Law § 125.25 [2]). Depraved indifference is a culpable mental state which “is best understood as an utter disregard for the value of human life” … . Thus, “a depraved and utterly indifferent actor is someone who does not care if another is injured or killed” (id. [internal quotation marks and citation omitted]). Due to the wanton nature of this mens rea, “depraved indifference murder properly applies only to a small, and finite, category of cases where the conduct is at least as morally reprehensible as intentional murder” … .

A defendant who knowingly pursues risky behavior that endangers others does not necessarily evince depraved indifference by engaging in that conduct. As we have explained, “[a] person who is depravedly indifferent is not just willing to take a grossly unreasonable risk to human life — that person does not care how the risk turns out” … . “The element of depraved indifference to human life comprises both depravity and indifference, and has meaning independent of recklessness and the gravity of the risk created” … . In short, the mens rea of depraved indifference will rarely be established by risky behavior alone. People v Maldonado, 2014 NY Slip Op 04878, CtApp 7-1-14

 

Violation of Defendant’s Right to Remain Silent Was Harmless Error—Elements of “Extreme Emotional Disturbance” Defense to Murder Explained

The Third Department, over a dissent, determined that the error in eliciting testimony, in violation of defendant’s post-Miranda right to remain silent, about defendant’s failure to apprise law enforcement that he shot the victims while under extreme emotional disturbance, was harmless error.  The decision includes a detailed discussed of the relevant criteria for “extreme emotional disturbance:”

As the Court of Appeals has instructed, the extreme emotional disturbance defense is comprised of both subjective and objective elements. “The subjective element focuses on the defendant’s state of mind at the time of the crime and requires sufficient evidence that the defendant’s conduct was actually influenced by an extreme emotional disturbance” …, i.e., “that the [defendant’s]; claimed explanation as to the cause of his [or her]; action [was]; not contrived or [a]; sham” … . This subjective element is “generally associated with a loss of self-control” … . The objective element, in turn, “requires proof of a reasonable explanation or excuse for the emotional disturbance . . . [, which]; must be determined by viewing the subjective mental condition of the defendant and the external circumstances as the defendant perceived them to be at the time, however inaccurate that perception may have been, and assessing from that standpoint whether the explanation or excuse for [the]; emotional disturbance was reasonable” … .

To be sure, the extreme emotional disturbance defense “is significantly broader in scope than the ‘heat of passion’ doctrine [that]; it replaced” … and, for that reason, the “[a];ction[s]; influenced by [such defense]; need not be spontaneous” … . “‘Rather, it may be that a significant mental trauma has affected a defendant’s mind for a substantial period of time, simmering in the unknowing subconscious and then inexplicably coming to the fore'” … . That said, evidence demonstrating a defendant’s “high degree of self-control” … , as well as any “postcrime conduct . . . suggest[ing]; . . . that [the defendant]; was in full command of his [or her]; faculties and had consciousness of guilt” … , is entirely inconsistent with an extreme emotional disturbance defense.  People v Pavone, 2014 NY Slip Op 03881, 3rd Dept 5-29-14

 

,

Attorney Conflict Waiver Criteria Discussed/Whether Molineux Analysis Should Be Applied to “Prior Bad Thoughts” in Journal Entries Discussed

In two concurring opinions, one by Judge Lippman and the other by Judge Abdus-Salaam, the Court of Appeals determined defendant did not raise an error warranting reversal.

The defendant contended (1) his attorney had personal interests which conflicted with her professional obligations to him, and (2) journal entries which were unrelated to the murder with which defendant was charged should not have been admitted in evidence.

One of defendant’s attorneys was under indictment by the same district attorney’s office for allegedly smuggling drugs to a client in jail. The defendant waived the conflict. The two judges disagreed about what such a conflict waiver should include and agreed the defendant’s conflict waiver was inadequate, but determined reversal was not required because there was an insufficient showing the conflict operated on the defense.

The journal entries were essentially “bad thoughts” about women other than the victim.  Judge Lippman determined that the “prior bad thoughts” should have been analyzed under the Molineux criteria for the admission of evidence of prior crimes and bad acts.  Judge Abdus-Salaam determined that Molineux should not be extended to such “prior bad thoughts,” which should simply be scrutinized under relevancy criteria. Both judges determined the erroneous admission of the “bad thoughts” evidence was harmless error.  People v Cortez, 225, CtApp 1-21-14

 

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

 

,

Admission of Cell-Phone-Location Data Did Not Required Frye Hearing; Prior Crime Evidence Properly Admitted to Prove Defendant’s Identity as Perpetrator of Charged Crime

In a full-fledged opinion by Justice Mastro, the Second Department affirmed the defendant’s murder conviction.  One piece of evidence against the defendant was location-data based on the use of defendant’s cell phone.  The Second Department determined there was no need for a Frye hearing before expert testimony about cell-phone location was presented because no novel scientific theory was involved. The Second Department also determined prior crimes demonstrating a similar unique pattern to that of the charged offense were admissible to prove identity.  With respect to some of the prior crime evidence, which did not sufficiently match the pattern of the charged crime to be admissible on the issue of identity, the erroneous admission of that evidence was deemed harmless. In discussing the prior-crime evidence, the court wrote:

In this case, the evidence of other crimes was offered to establish the defendant’s identity as [the victim’s] killer. Such evidence may be admitted if, as a threshold matter, the defendant’s identity is in issue and is not “conclusively established” by other evidence …, and it is demonstrated by clear and convincing evidence that the defendant is the same person who committed the other crimes …. Here, it cannot be said that the defendant’s identity as the killer was conclusively established so as to warrant the preclusion of other crimes evidence to prove identity. Indeed, while the evidence that the defendant was the person who killed [the victim] was compelling, it was also entirely circumstantial. Moreover, the defendant vigorously contested the identification issue and presented as a defense the assertion that his employer… had been the actual killer. Thus, the identity of the murderer was a disputed issue in the case, and any admissible evidence tending to establish identification was relevant… . People v Littlejohn, 2013 NY Slip Op 07063, 2nd Dept 10-30-13

 

Flawed Jury Instruction Re: Assisted Suicide Affirmative Defense to Murder Required New Trial

In a full-fledged opinion by Justice Richter, the First Department determined the trial court’s jury instruction on the assisted-suicide affirmative defense to murder did not accurately instruct the jury on the elements of the defense and a new trial was required. Apparently there was no question that the decedent wanted to die and that the defendant participated in some way in decedent’s death.  The central questions were whether defendant held the knife while the decedent leaned into it or whether defendant actively stabbed the decedent. The First Department noted that the prosecutor was not obligated to instruct the grand jury on the assisted-suicide affirmative defense because it is a mitigating defense (reducing the charge from murder) not a complete defense.  With respect to the elements of the assisted-suicide affirmative defense, the court wrote:

If the decedent took no part whatsoever in the ultimate act that led to his death, it cannot be characterized as suicide, even if the record shows the decedent wanted to die. In this regard, we find that the jury’s verdict convicting defendant of murder was based on legally sufficient evidence and was not against the weight of the evidence … . The testimony of the People’s medical expert provided ample proof that defendant repeatedly stabbed the decedent. Based on this evidence, the jury was entitled to reject defendant’s claim that he merely held the knife.

But the jury was also free to accept defendant’s account of events. Under that version, a jury could have found that the decedent committed suicide because he committed the final overt act that caused his death, i.e., thrusting himself into the knife. Notably, the People did not argue below that defendant’s version, if believed, would not satisfy the affirmative defense to murder. In fact, the record shows that the People acquiesced to the defense being charged, and they do not argue otherwise on appeal. The People made no objection to the charge, and in fact offered their own proposed language to the court. The trial court determined that defendant’s version supported the assisted suicide defense because it decided to give the charge … .

Under these circumstances, the portion of the court’s instruction that the assisted suicide defense is not made out if defendant “actively” caused the decedent’s death, along with the expansive definition of the word “active” given in the supplemental charge, was confusing and conveyed the wrong standard. Neither the word “active,” nor its antonym “passive,” appears in the statutory language and thus, by giving this charge, the court added an element that is not part of the defense. People v Minor, 2013 NY Slip Op 06444, First Dept 10-3-23

 

,

Jury Should Have Accepted Extreme Emotional Disturbance Affirmative Defense

In a full-fledged opinion by Justice Cohen, over a dissent, the Second Department determined the jury’s failure to reduce the defendant’s conviction to manslaughter because he was under the influence of extreme emotional disturbance when he killed his girlfriend was against the weight of the evidence.  The opinion describes the nature and causes of the defendant’s emotional state in great detail. The court explained the “extreme emotional disturbance” affirmative defense as follows:

We begin our analysis by examining the nature and scope of the affirmative defense of extreme emotional disturbance. Penal Law §§ 125.25(1)(a) and 125.20(2), “[r]ead in tandem,” together “provide that a defendant who proves by a preponderance of the evidence that he or she committed a homicide while under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse’ is guilty of manslaughter and not murder” … . The defense of extreme emotional disturbance does not negate intent (see Penal Law § 125.20[2]…). Instead, the “defense allows a defendant charged with the commission of acts which would otherwise constitute murder to demonstrate the existence of mitigating factors which indicate that, although [ ] not free from responsibility for [the] crime, [defendant] ought to be punished less severely” … . Although the defense of extreme emotional disturbance is “an outgrowth of the heat of passion’ doctrine which had for some time been recognized by New York as a distinguishing factor between the crimes of manslaughter and murder,” the defense is broader than the “heat of passion” doctrine, and was intended to apply to a “wider range of circumstances” … .

The defense of extreme emotional disturbance comprises two elements. The first element is “wholly subjective” and”involves a determination that the particular defendant did in fact act under extreme emotional disturbance, that the claimed explanation as to the cause of his action is not contrived or sham” … . The subjective element “focuses on the defendant’s state of mind at the time of the crime and requires sufficient evidence that the defendant’s conduct was actually influenced by an extreme emotional disturbance” … . The subjective element is generally associated with a loss of self-control … . The second element, which the Court of Appeals has acknowledged to be “more difficult to describe,” requires that an objective determination be made as to whether there was a reasonable explanation or excuse for the emotional disturbance … . “Whether such a reasonable explanation or excuse exists must be determined by viewing the subjective mental condition of the defendant and the external circumstances as the defendant perceived them to be at the time, however inaccurate that perception may have been'” … . People v Sepe, 2013 NY Slip Op 06030, 2nd Dept 9-25-13

 

,

Depraved Indifference Murder of Child Count Should Not Have Been Dismissed Based On the Grand Jury Evidence In Spite of Difficulty of Proving the Count at Trial

The Third Department determined the trial court should not have dismissed the count of the indictment which charged defendant with depraved indifference murder of a child.  While acknowledging the prosecution may have difficulty proving the charge at trial, the court determined that a logical inference from the grand-jury proof was that the injuries defendant inflicted on the child were immediately and obviously very serious and defendant callously delayed getting help while minimizing his conduct and the seriousness of the injuries.  In explaining the general criteria for the sufficiency of grand jury evidence, the court wrote:

In reviewing a motion to dismiss an indictment, courts view the evidence in a light most favorable to the People and determine only whether the evidence presented to the grand jury was legally sufficient … . “In the context of grand jury proceedings, ‘legal sufficiency means prima facie proof of the crimes charged, not proof beyond a reasonable doubt’… .  “The reviewing court’s inquiry is limited to whether the facts, if proven, and the inferences that logically flow from those facts supply proof of every element of the charged crimes” … .  “[I]f the prosecutor has established a prima facie case, the evidence is legally sufficient even though its quality or weight may be so dubious as to preclude indictment or conviction pursuant to other requirements” … .  People v Waite, 105416, 3rd Dept 7-25-13

 

Plea Colloquy Deficient Re: Depraved Indifference State of Mind

The Fourth Department reversed defendant’s conviction because the plea colloquy cast doubt on whether the defendant had the requisite “depraved indifference” state of mind:

Defendant’s contention that his plea was not knowing and voluntary survives his waiver of the right to appeal … . Preservation of the contention is not required inasmuch as defendant correctly contends that his statements during the plea colloquy cast significant doubt upon his guilt….Defendant stated that he struggled with his wife for control of the knife and that he acted recklessly when he stabbed her, and thus his statements suggest that he did not act with the requisite “depraved indifference state of mind”… . Indeed, it is well established that a “one-on-one . . . knifing . . . can almost never qualify as depraved indifference murder”…. We therefore conclude that County Court erred by accepting the plea without further inquiry … .  People v Robinson, 688, 4th Dept, 6-14-13

 

,

Submission of Intentional and Depraved Indifference Murder to Jury in Conjunctive Rather than Alternative Okay

The Second Department determined the trial court did not err when it submitted intentional murder and depraved indifference murder to the jury in the conjunctive, rather than the alternative, because more than one potential victim was present:

The defendant, relying on People v Molina (79 AD3d 1371), contends that the submission of the counts of intentional murder (and attempted murder) and depraved indifference murder to the jury in the conjunctive, rather than in the alternative, violated his right to due process. However, the defendant’s contention is without merit. “Where, as here, more than one potential victim was present at the shooting, a defendant may be convicted of both counts because he or she may have possessed different states of mind with regard to different potential victims”…. To the extent that the Appellate Division, [3rd] Department, held differently in Molina, we disagree and decline to follow that holding. People v Dubarry, 2013 NY Slip Op 04354, 2nd Dept, 6-12-13

 

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