The opinion
Smith, J. (concurring).
I concur in the result the majority reaches, but not in its reasoning. I do not think this case fits with our depraved indifference jurisprudence as it has developed over the last decade. Rather, I think that a case like this—a severe beating that killed an infant—is a justified, narrow exception to the rule established by our recent cases that a depraved indifference murder conviction cannot be sustained unless a *408 jury could find, beyond a reasonable doubt, that the defendant was literally indifferent to whether the victim lived or died.
This is the first case since People v Sanchez ( 98 NY2d 373 [2002]) in which we have found the evidence sufficient to support a jury finding of depraved indifference to human life. In the interim, we have found insufficient evidence of depraved indifference in 17 cases, * and have overruled Sanchez and People v Register ( 60 NY2d 270 [1983]) (see People v Feingold, 7 NY3d 288, 295-296 [2006]). We have decided in three recent cases that neither a brutal, fatal assault (People v Bussey, 19 NY3d 231 [2012]) nor a reckless failure to protect or get help for an abused child (People v Lewie, 17 NY3d 348 [2011]; People v Matos, 19 NY3d 470 [2012]) is proof of depraved indifference.
This case is different from those three because in Bussey the victim was an adult, and in Lewie and Matos the defendants were not the people who physically abused the children. I agree with the majority that these differences justify a difference in result. While Bussey, Lewie and Matos were guilty of “shocking behavior [which] in ordinary speech people might call . . . ‘depraved’ ” (Lewie, 17 NY3d at 359 ), the depravity in a crime like this is of a different order. An assault against a young child is immeasurably worse than an assault against an adult, both because the child is so much more vulnerable and because the child could have done nothing to provoke the offense. And the offender who actually beats the child commits a much worse offense than one who only fails to prevent the beating or to forestall its consequences. If ever there was conduct
“so wanton, so deficient in a moral sense of concern, so devoid of regard of the life or lives of others, and so blameworthy as to warrant the same criminal liability as that which the law imposes upon a person who intentionally causes the death of another”
(People v Suarez, 6 NY3d 202, 211 [2005], quoting earlier cases), the conduct of this defendant is it.
*409 Still, there is a problem. Under our recent cases, the depraved indifference statutes are not an invitation for juries and judges to make moral judgments about how bad the conduct was in each particular case. We have insisted on a narrow, literal reading of “depraved indifference”:
“Our cases make clear that the word ‘indifference’ is to be taken literally: ‘depraved indifference is best understood as an utter disregard for the value of human life—a willingness to act . . . because one simply doesn’t care whether grievous harm results or not’ ” (Lewie, 17 NY3d at 359 , quoting earlier cases).
I find it hard to see how this defendant was any more indifferent to whether the victim lived or died than the defendant in Bussey was. Bussey establishes that we would not uphold a depraved indifference murder conviction on facts like the ones before us if the victim were an adult; yet the age of the victim hardly seems relevant to the question of whether the defendant was indifferent to the victim’s fate. As the majority opinion shows, the strongest evidence of indifference in this case is in defendant’s callous behavior in the hours between the assault and the child’s death. But Matos establishes that we would not uphold the depraved indifference murder conviction of a defendant who reacted with equal callousness to child abuse that someone else had committed. I disagree with the heavy emphasis that the majority puts on defendant’s post-assault behavior (cf. Suarez, 6 NY3d at 210 [depraved indifference should be decided “irrespective of what the actor does or does not do after inflicting the fatal injury”]). I think the evidence on that subject was relevant here, but I also think there was sufficient evidence without it to sustain the conviction. I would say that anyone who beats a baby to death in the way that this defendant did could be found to be a murderer, even if the assault was immediately followed by tears of remorse.
I conclude that the extraordinary evil of this kind of crime— severe, fatal abuse of a young child—warrants an exception to the rule of Lewie that “the word ‘indifference’ is to be taken literally.” I am fortified in this conclusion by the legislature’s recognition in the text of the murder statute that child abuse is in a class by itself. The broader depraved indifference murder statute, Penal Law § 125.25 (2), applies to a person who “[u]nder circumstances evincing a depraved indifference to human life . . . recklessly engages in conduct which creates a *410 grave risk of death to another person.” But this defendant was prosecuted under Penal Law § 125.25 (4), applicable to one who “[u]nder circumstances evincing a depraved indifference to human life, and being eighteen years old or more . . . recklessly engages in conduct which creates a grave risk of serious physical injury or death to another person less than eleven years old” (emphasis added). Thus the legislature clearly intended to make child abusers punishable for murder when their victims died, even where the risk that they recklessly created was a risk of something less than death; the idea that “depraved indifference” can only exist when a defendant does not care whether the victim lives or dies seems incompatible with that intention.
I also find support for the application of the statute to this case in our decision in Suarez . There, we said that “[t]wo fact patterns have recurred” under the depraved indifference murder statute ( 6 NY3d at 212 ). One of those consists of defendants who engage “in torture or a brutal, prolonged and ultimately fatal course of conduct against a particularly vulnerable victim” (id.). Defendant argues here that his case does not fit this category because his brutality was not “prolonged,” but the argument misses the point; the Suarez categories are not the only possible kinds of depraved indifference murder. More relevant is Suarez’s recognition that maltreatment of a “particularly vulnerable victim” is an important factor in deciding whether the statute applies. Logically, the vulnerability of the victim may not justify an inference that the perpetrator was literally indifferent between life and death; but the moral enormity of a crime against such a victim does justify a less literal reading of the statute in this narrow class of cases.
Chief Judge Lippman and Judges Graffeo, Read and Rivera concur with Judge Pigott; Judge Smith concurs in result in an opinion; Judge Abdus-Salaam taking no part.
Order affirmed.
People v Hafeez, 100 NY2d 253 (2003); People v Gonzalez, 1 NY3d 464 (2004) ; People v Payne, 3 NY3d 266 (2004); People v Suarez, 6 NY3d 202 (2005) ; People v McPherson, 6 NY3d 202 (2005); People v Feingold, 7 NY3d 288 (2006); People v Atkinson, 7 NY3d 765 (2006); People v Mancini, 7 NY3d 767 (2006); People v Swinton, 7 NY3d 776 (2006); People v George, 11 NY3d 848 (2008); People v Taylor, 15 NY3d 518 (2010); People v Prindle, 16 NY3d 768 (2011); People v Lewie, 17 NY3d 348 (2011); People v Martinez, 20 NY3d 971 (2012); People v Bussey, 19 NY3d 231 (2012); People v Matos, 19 NY3d 470 (2012); People v Bell, 21 NY3d 915 (May 2, 2013).