holding that evidence was legally sufficient to sustain conviction for depraved indifference murder where defendant drove "in excess of eighty miles per hour on a local road" with a BAC of 0.28% and struck oncoming vehicle "at full speed," killing passengers instantly
How later courts described this case
- holding that evidence was legally sufficient to sustain conviction for depraved indifference murder where defendant drove "in excess of eighty miles per hour on a local road" with a BAC of 0.28% and struck oncoming vehicle "at full speed," killing passengers instantly
- explaining that an individual who engages in such conduct "is undoubtedly an individual whose culpability is the equivalent of an intentional murderer"
- reviewing the merits of defendant’s challenge to a depraved indifference murder conviction that the Appellate Division found unpreserved
- intoxicated driver speeding on the wrong side of the highway was sufficient for depraved mind murder
Written by the judges who cited it.
The opinion
Read, J.
(dissenting). Judge Smith amply demonstrates that the evidence in these three cases is insufficient to support murder convictions under our depraved indifference murder jurisprudence as it has stood at least since People v Feingold ( 7 NY3d 288 [2006]) overruled People v Register ( 60 NY2d 270 [1983], cert denied 466 US 953 [1984]). We have elsewhere recounted the stepwise progression of our retreat from Register (see generally Feingold, 7 NY3d at 290-294 ; Policano v Herbert, 7 NY3d 588 [2006]), and there is no need to repeat that narrative here. Suffice it to say that jettisoning Register was controversial. Only three of the current members of the Court participated in the relevant decisions; and two of the three were not persuaded that overruling Register was wise or necessary, at least not initially (see People v Suarez, 6 NY3d 202, 219 [2005, Read, J, concurring in result on constraint; Graffeo, J., dissenting]). But the Court ultimately decided that depraved indifference is a culpable mental state; that recklessness, no matter how extreme, is not enough by itself to support a conviction for the crime of depraved indifference murder. Under Register , by contrast, a conviction for depraved indifference murder hinged upon an objective assessment of the degree of risk presented by the defendant’s reckless conduct.
Essentially, the majority has resurrected the Register standard for cases in which intoxicated drivers kill innocent people, or at least has done so here in order to salvage these three convictions. But any departure from Feingold for drunk driving cases is contrary not only to our precedent, but also to legislative intent. The legislature in 2007—-just a year after we decided Feingold—amended the Penal Law to create the new crime of aggravated vehicular homicide, a class B felony with a penalty of up to 25 years in prison (see Penal Law § 125.14; see also L *286 2007, ch 345). * This crime occurs when an individual kills someone while driving with ability impaired by alcohol or drugs, along with the presence of at least one of the following factors: a blood alcohol content of .18 or higher; a DWI conviction within the previous 10 years; the crash caused the death of more than a single person; the crash killed one person and severely injured another; a previous conviction under Penal Law articles 120 or 125 involving the operation of a motor vehicle; the crash caused the death of a passenger in the offender’s vehicle who was a child of 15 years of age or less; or the offender was driving with a suspended or revoked license from any state.
In fashioning this crime, the legislature was, at least in part, responding to prosecutors’ pleas that “[rjecent court decisions [i.e., Feingold and the decisions leading up to it] ha[d] so limited the application of the depraved indifference statutes to vehicular crimes as to make them inapplicable”; and “[p]erversely,” a driver might as a result try to defend against such a charge by using a claim of extreme intoxication to negate the newly required culpable mental state (id. at 15-16, June 15, 2007 letter from District Attorneys Association of the State of New York [emphasis added]; see also Paul Shechtman, The Meaning of Depraved-Indifference Murder; New Legislation?, NYLJ, Apr. 4, 2005 at 26, col 1 [exploring the implications of the Court’s evolving depraved indifference jurisprudence for the intoxication defense]).
In sum, the legislature has addressed the proper standards for assessing the culpability of drunk drivers who cause fatalities, and the proper measure of their punishment. And it did not choose to do so by amending the second-degree murder statute, which the majority now reinterprets so as to uphold these convictions for depraved indifference murder.
Judges Graffeo, Pigott, Rivera and Abdus-Salaam concur with Chief Judge Lippman; Judge Smith dissents in an opinion in which Judge Read concurs in a separate opinion.
In each case: Order affirmed.
The fatalities in these three cases predated the statute’s effective date.