# People v. Johnson

> Appellate Division of the Supreme Court of the State of New York · November 10, 2009 · 67 A.D.3d 448

URL: https://www.frixlaw.com/law-library/cases/5784627

## Case

- **Full name:** The People of the State of New York v. Fatin Johnson
- **Court:** Appellate Division of the Supreme Court of the State of New York
- **Decided:** November 10, 2009
- **Citations:** 67 A.D.3d 448; 891 N.Y.S.2d 306
- **Precedential status:** Published
- **Opinion:** Dissent by Mazzarelliandrias
- **Judges:** Andrias, Mazzarelli
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5784627

## Opinion text

Mazzarelli, J.P, and Andrias, J.,
dissent in a memorandum by Andrias, J., as follows: I respectfully dissent as I believe the conviction for depraved indifference murder, as viewed in light of the court’s jury charge, which reflected the law that was in effect at the time of the crime (see People v Sanchez, 98 NY2d 373, 379-380 [2002], explaining People v Register, 60 NY2d 270, 276-277 [1983], cert denied 466 US 953 [1984]), is against the weight of the evidence (see People v Noble, 86 NY2d 814 [1995]).
Defendant fatally shot his brother once in the back during a dispute over money in the street. This one-on-one shooting was not “marked by uncommon brutality” (People v Payne, 3 NY3d 266, 271 [2004]), and did not evince the mental culpability required for depraved indifference (Sanchez, 98 NY2d at 380 ). However, the evidence, including testimony that defendant brandished a revolver during the dispute and fired it at the victim as others, including children, stood nearby, supported a finding that defendant acts were reckless, as the jury determined, but not depraved (see People v George, 11 NY3d 848 [2008]; People v Jean-Baptiste, 11 NY3d 539 [2008]; People v Atkinson, 7 NY3d 765 [2006]; People v McMillon, 31 AD3d 136 [2006], lv denied 7 NY3d 815 [2006]; People v Dudley, 31 AD3d 264 [2006], lv denied 7 NY3d 866 [2006]). Thus, I would reduce defendant’s murder conviction to manslaughter in the second degree.
Despite the majority’s statement that the majority in defendant’s previous appeal to this Court ( 43 AD3d 288 [2007]) implicitly rejected defendant’s weight of the evidence argument, such statement is not borne out by a plain reading of that decision, which essentially set forth the majority’s reasons why the evidence was sufficient based on the court’s charge as given without objection. Defendant argues that, even under the standard applicable at the time of his trial, a typical one-on-one shooting did not qualify as a depraved indifference murder. The *462 majority rejects this argument because at no point did the trial court instruct the jury that a “one-on-one shooting,” typical or not, did not qualify as a depraved indifference murder and defendant never protested the absence of any such instruction. However, People v Payne (supra) and People v Gonzalez ( 1 NY3d 464 [2004]), the cases relied on by defendant, do not hinge on the substance of the court’s charge to the jury. Rather, those cases, as well as People v Hafeez ( 100 NY2d 253 [2003]), made clear that a one-on-one shooting or knifing (or similar killing) can never, with rare exception, qualify as depraved indifference murder.
Indeed, Justice Catterson writing for a unanimous Court in People v Dickerson ( 42 AD3d 228, 234 [2007], lv denied 9 NY3d 960 [2007]) recognized that a conviction of depraved indifference murder may be found legally insufficient where the evidence demonstrates a “manifest intent to kill.” He also recognized the very limited circumstances in which depraved indifference may be found in one-on-one killings, giving two examples not relevant here (abandoning a helpless and vulnerable victim in circumstances where the victim is highly likely to die, or where a defendant acts not to kill but to harm and engages in torture or a brutal, prolonged and ultimately fatal course of conduct against a particularly vulnerable victim) (id.).
As found by the Court of Appeals, the original memorandum decision in this case did not indicate that the majority weighed the evidence in light of the elements of the crime as charged to the jury ( 10 NY3d 875 [2008]); however, the dissent clearly did, finding that “the verdict was against the weight of the evidence (see generally People v Cahill, 2 NY3d 14, 57-62 [2003]) with respect to the element of depraved indifference to human life, viewed in light of the court’s charge to the jury on that element (see People v Noble, 86 NY2d 814 [1995])” ( 43 AD3d at 296 ).
While this was not a point-blank shooting as was the case in People v Sanchez ( 98 NY2d 373 [2002]) that defendant’s conduct manifested an intent to kill rather than depravity or indifference to human life, as that term is generally understood, is evidenced by the majority’s own description of the events, in which defendant took a “shooter’s stance” and shot his brother once in the back as he ran (“Defendant stood on the sidewalk with his hands extended in front of him, holding the revolver with both hands. He pulled the trigger, shooting Amir once in the back”).
As the Court of Appeals has said: “[I]f a defendant fatally shoots the intended victim once, it could be murder, manslaughter in the first or second degree or criminal negligence (or self- *463 defense), but not depraved indifference murder” (People v Payne, 3 NY3d at 272 ). That people, including trained police officers who fire handguns, do not always hit the intended target (see People v Butler, 86 AD2d 811, 815 [1982, Sandler, J., dissenting], revd on dissenting mem 57 NY2d 664 [1982]), does not negate defendant’s clear intent, under any standard, to shoot his brother in the back and affords no support for any argument that a jury could reasonably have found that defendant recklessly shot his brother under circumstances evincing a depraved indifference to human life. This is simply not that rare exception alluded to by the Court of Appeals in People v Payne ( 3 NY3d at 272 n 2).
Accordingly, I would modify the judgment convicting defendant of murder in the second degree and criminal possession of a weapon in the third degree, on the facts, to the extent of reducing the murder conviction to manslaughter in the second degree and remanding for resentencing on that conviction, and otherwise affirm.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5784627. Public record. Not legal advice.