stating in the context of a defendant recklessly firing a single bullet at his friend from twelve to eighteen inches away that the "defendant's shooting into the victim's torso at point-blank range presented such a transcendent risk of causing his death that it readily meets the level of manifested depravity needed to establish" depraved mind murder
How later courts described this case
- stating in the context of a defendant recklessly firing a single bullet at his friend from twelve to eighteen inches away that the "defendant's shooting into the victim's torso at point-blank range presented such a transcendent risk of causing his death that it readily meets the level of manifested depravity needed to establish" depraved mind murder
- noting that “the jury may also have taken into account the preexisting good relations between defendant and [the victim], and concluded that this was an instantaneous, impulsive shooting-perhaps to disable or *84 frighten [the victim], rather than to kill him”
- asking “whether, on this record, based on an objective assessment of the risk defendant recklessly created and disregarded, the likelihood of causing death from defendant’s conduct was so obviously severe that it evinced a depraved indifference to human life”
- observing that requirements that conduct pausing death be “aimed at no one in particular” and must “endanger indiscriminately the lives of many” were “entirely obsolete” under then-existing New York law (internal quotation marks and alteration omitted)
Written by the judges who cited it.
Later courts went against this
Overruled by People v. Feingold, 7 N.Y.3d 288 (2006)
98 N.Y.2d 373, 381-81, 748 N.Y.S.2d 312, 777 N.E.2d 204 (N.Y.2002) (upholding conviction for depraved indifference murder when defendant fired a gun pointed at the victim’s chest from a distance of twelve to eighteen inches and then fled), overruled by People v. Feingold, 7 N.Y.3d 288, 819 N.Y.S.2d 691, 852 N.E.2d 1163.
The opinion
Ciparick, J.
(dissenting). While I agree with my dissenting colleagues that the evidence presented at trial does not support a conviction for depraved indifference murder, and that after today the once prominent distinction between depraved indifference murder (Penal Law § 125.25 [2]) and intentional murder (Penal Law § 125.25 [1]) has been regrettably obscured, I disagree with their proposed disposition. Instead, I believe that no reasonable view of the evidence supports a finding of recklessness, on any level. This Court’s only recourse is to reverse defendant’s conviction of depraved indifference murder and dismiss that count of the indictment. I cannot concur with the dissent’s recommendation to reduce defendant’s sentence to manslaughter in the second degree (see Penal Law § 125.15 [1]).
*417 A reduction to second degree manslaughter proves problematic. The evidence supports a finding of intentional conduct, not recklessness (see Penal Law § 15.05 [1], [3]). Indeed, the sole eyewitness to the shooting, Ms. Liburd, claims that defendant “walked out [of the apartment] turned right back around and came in and drew the gun * * * and he shot Tim and he ran.” The witness’s description of the incident does not sustain a finding of reckless conduct but rather one of pure intent. Neither the objective circumstances necessary for a finding of depraved indifference murder, nor the basic recklessness necessary to sustain the lesser included count of manslaughter in the second degree are supported by the record.
Furthermore, defendant’s acquiescence to a lesser included instruction on second degree manslaughter did not, in my opinion, operate as a waiver precluding him from raising an argument as to the insufficiency of the People’s proof.
Chief Judge Kaye and Judges Wesley and Graffeo concur with Judge Levine; Judges Smith and Rosenblatt dissent and vote to reverse, reduce the conviction to manslaughter in the second degree and remit for resentencing in separate dissenting opinions; Judge Ciparick dissents and votes to reverse and dismiss the indictment in another opinion.
Order affirmed.