explaining that depraved indifference murder is “established when a defendant — acting with a conscious objective not to kill but to harm — engages in torture or a brutal, prolonged and ultimately fatal course of conduct against a particularly vulnerable victim. When a defendant’s actions serve to intensify or prolong a victim’s suffering, they bespeak a level of cruelty that establishes the depravity mandated by statute.”
How later courts described this case
- explaining that depraved indifference murder is “established when a defendant — acting with a conscious objective not to kill but to harm — engages in torture or a brutal, prolonged and ultimately fatal course of conduct against a particularly vulnerable victim. When a defendant’s actions serve to intensify or prolong a victim’s suffering, they bespeak a level of cruelty that establishes the depravity mandated by statute.”
- holding that 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” and admitting to “departing] slightly from the Register formulation ... in that we make clear that the additional requirement of depraved indifference has meaning independent of the gravity of the risk”
- observing that "a one-on-one shooting or knifing (or similar killing) can almost never qualify as depraved indifference murder" under N.Y. Penal Law § 125.25(2
- observing that “[q]uintessential examples” of depraved indifference murder include “firing into a crowd” (citing People v. Jernatowski, 238 N.Y. 188, 192, 144 N.E. 497 (1924
Written by the judges who cited it.
The opinion
G.B. Smith, Rosenblatt and R.S. Smith, JJ. (concurring).
We are full participants in the Court’s per curiam decision, but write separately to add some views of our own.
The Court’s earlier decisions in People v Register ( 60 NY2d 270 [1983]) and in People v Sanchez ( 98 NY2d 373 [2002]), which was based in significant part on Register , gave too expansive a definition to depraved indifference murder. The Court has properly limited the force of those decisions in People v Hafeez ( 100 NY2d 253 [2003]), People v Gonzalez ( 1 NY3d 464 [2004]) and People v Payne ( 3 NY3d 266 [2004]), and has limited them even further today. We would take a step beyond the per curiam opinion and say what the Court stops short of saying: that Register and Sanchez should be explicitly overruled.
Notwithstanding this difference, we welcome the Court’s return to a more restrictive, and we believe more sound, interpretation of the depraved indifference murder statute. But there is, as all members of this Court are painfully aware, a price to be paid for this needed revision in the Court’s approach. At least in Gonzalez, Payne and Suarez, defendants’ convictions have been reversed despite—indeed, in part because of—strong evidence that they intended to kill their victims. But juries acquitted Gonzalez, Payne and Suarez of intentional murder, and we think the Court has rightly concluded that a correct interpretation of the depraved indifference murder statute does not permit their convictions of that crime to stand.
In overturning convictions in such cases, the Court, in our view, performs an unpleasant but necessary duty, and by doing so will make future homicide prosecutions more sustainable, increasing the likelihood that defendants who are proven beyond a reasonable doubt to have committed intentional murder will be properly held to account for that crime. We expect, or at least hope, that the rule embodied in this and our other recent decisions will be applied prospectively, and that any impact on already completed prosecutions can be avoided. Defendants who committed vicious crimes but who may have been charged and convicted under the wrong section of the statute are not attrac *218 tive candidates for collateral relief after their convictions have become final. 1
A defendant who commits intentional murder should be convicted and punished for that crime, not for a crime that he or she did not commit and that a jury may mistakenly believe is less serious. Where intentional murder is not made out, the lesser degrees of homicide, including first and second degree manslaughter, can fully serve the function they served for decades before the relatively recent, seismic expansion in depraved indifference murder prosecutions. 2 Continuing to countenance the routine use of depraved indifference murder charges, as the dissent would have us do, will ultimately cause more trouble than the course the Court has taken today.
Further, and contrary to the dissent, the Court does not hold that a person who stabs another with a knife may never be guilty of depraved indifference murder. It is better to say “almost never,” as the Court does. Though we have held that a point-blank shooting may almost never qualify as depraved indifference murder, we have recognized that a variation on Russian roulette (a point-blank shooting) may be an exception (see People v Roe, 74 NY2d 20 [1989]). Similarly, if one person kills another by throwing a knife to see how close it can get to the victim’s head, a depraved indifference murder charge may be justified. But law school-type hypotheticals are not the stuff of the day-to-day criminal courts; and the per curiam opinion, by saying “almost never,” avoids taking an absolutist position that would wholly foreclose depraved indifference murder, in a one-on-one situation, by the use of a knife or any other means.
We appreciate our dissenting colleague’s desire to affirm in Suarez and reverse in McPherson. But, as the per curiam opinion demonstrates, to reach that result while applying Register and Sanchez requires overlooking the fact that both *219 defendants created at least a grave risk of death by fatally stabbing their victims in the chest. It may well be that justice would call for convicting Suarez of murder and McPherson of manslaughter, but the degree of risk created is not a sufficient basis for distinguishing between cases like these. The distinction can be properly made only by requiring that the prosecution, to obtain a murder conviction, must prove intent to kill or, in the rare cases where it is present, depraved indifference to human life. That is what the Legislature plainly intended, and we welcome the Court’s decision today to adhere to that original intention.
. Adherence to the Register/Sanchez analysis may have adverse consequences for the stability of previous convictions. Some federal court decisions indicate that the statute as interpreted according to Register and Sanchez raises constitutional problems that should result in the release of some defendants on federal collateral review (see Jones v Keane, 2002 US Dist LEXIS 27418 [SD NY, May 22, 2002, 02 Civ 1804 (CLB)], revd on other grounds 329 F3d 290 [2d Cir 2003]; St. Helen v Senkowski, 2003 US Dist LEXIS 26642 [SD NY, Sept. 19, 2003, 02 Civ 10248 (CLB)], revd on other grounds 374 F3d 181 [2d Cir 2004]; see also Policano v Herbert, 430 F3d 82 [2d Cir 2005]). Today’s decision should alleviate those concerns.
. This view was expressed in the dissenting opinions of G.B. Smith, Ciparick and Rosenblatt, JJ. in Sanchez ( 98 NY2d 373, 401-402, 416 [2002]).