People v. Suarez

Graffeo, J. (concurring in McPherson and dissenting in Suarez).

The majority concludes that a person who stabs someone with a knife cannot act with “a depraved indifference to human life” (Penal Law § 125.25 [2]). To reach this conclusion and limit the applicability of the depraved indifference murder statute, the majority employs reasoning that is inconsistent with the language of the statute as well as the carefully drawn legislative distinctions between intentional murder, depraved indifference murder and manslaughter. Its rationale deviates from our precedent in People v Sanchez ( 98 NY2d 373 [2002]), People v Register ( 60 NY2d 270 [1983]) and other cases decided by this Court. Today’s decision also fails to recognize and respect the ability of our jury system to reliably differentiate between different types of homicide. For these reasons, I respectfully disagree with the majority’s interpretation of the depraved indifference murder statute.

Depraved Indifference Murder

The Legislature codified distinct categories of homicide in the Penal Law that became effective in 1967. Murder in the second degree is committed by intentionally causing the death of an *220 other (see Penal Law § 125.25 [1]). An intentional killing may also be classified as first-degree murder if certain aggravating circumstances concerning the crime, the victim or the defendant are present (see Penal Law § 125.27 [1] [a]). A murder is intentional when the accused acts with the “conscious objective” to kill (Penal Law § 15.05 [1]). A lesser offense, manslaughter in the first degree, is committed when a person who intended to cause serious physical injury, causes death (see Penal Law § 125.20 [1]).

Recognizing that not all criminal conduct is intentional, the Legislature created several categories of nonintentional homicide, reflecting differing degrees of criminal culpability. A distinct type of murder, referred to as “depraved mind murder,” had previously been codified in New York, but the earlier statute had been interpreted to apply only to deaths that occurred when a defendant’s conduct had endangered more than one person and was not directed at harming any particular person (see Darry v People, 10 NY 120, 147 [1854]). In order to expand the reach of the offense, the Legislature redesignated this category of homicide as “depraved indifference murder,” classified it as second-degree murder and provided that the crime is committed when a person, “[u]nder circumstances evincing a depraved indifference to human life, [ ] recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person” (Penal Law § 125.25 [2]). To kill recklessly, as opposed to intentionally, one must be “aware of and consciously disregard[ ]” a risk that conduct will result in death (Penal Law § 15.05 [3]). Both of these forms of second-degree murder—intentional and depraved indifference—carry the same penalties and are class A-I felonies. This underscores the Legislature’s desire to enact a category of homicide that, although not the result of a conscious intent to kill, is the result of circumstances, coupled with a grave disregard for life, comparable in severity and blameworthiness to intentional murder. 1

Another category of homicide, manslaughter in the second degree, a crime of lesser grade and severity, is also premised on reckless conduct (see Penal Law § 125.15 [1]). There is, however, a critical difference between second-degree manslaughter and depraved indifference murder. Depraved indifference murder requires that the actor create a “grave” risk of death (Penal *221 Law § 125.25 [2]), whereas the manslaughter statute employs a lesser, “substantial” risk of death standard (Penal Law § 15.05 [3]). When a jury concludes that the lesser degree of risk was created and convicts a defendant of manslaughter, a class C felony, the sentencing options are far less onerous than the penalties authorized for a depraved indifference murder conviction (see generally Penal Law art 70).

Thus, in delineating between these types of homicide, the Legislature clearly indicated that the important factors that distinguish these crimes are whether a person acts intentionally with respect to a particular result (for intentional murder and first-degree manslaughter) or recklessly with regard to whether death will result (for depraved indifference and second-degree manslaughter), and if the person was reckless, whether that conduct created a grave risk of death (for depraved indifference) as opposed to only a substantial risk of death (for manslaughter). The determination of the accused’s state of mind and the degree of risk created by his or her conduct has traditionally and almost exclusively been reserved to a jury of the accused’s peers.

This Court on a number of occasions has discussed the meaning of the depraved indifference requirement in the second-degree murder statute. In People v Register, we explained that depraved indifference “refers to neither the mens rea nor the actus reus” of the crime ( 60 NY2d at 276 ). Rather, it is “a definition of the factual setting in which the risk creating conduct must occur” (id.). This is consistent with the carefully chosen statutory condition that depraved indifference second-degree murder is available only in “circumstances evincing a depraved indifference to human life” (Penal Law § 125.25 [2] [emphasis added]). The Legislature inserted the word “circumstances” for a reason. As we emphasized in People v Sanchez, the “requirement of circumstances evincing a depraved indifference to human life . . . focuses not on the subjective intent of the defendant, ‘but rather upon an objective assessment of the degree of risk presented by [the] defendant’s reckless conduct’ ” ( 98 NY2d at 379-380 , quoting Register, 60 NY2d at 277 ). And it is the “exceptionally high, unjustified risk of death [that] constitute[s] the primary means by which the Legislature differentiated between the reckless state of mind sufficient to establish the mental culpability of manslaughter and the extreme recklessness of [depraved indifference] murder” (Sanchez, 98 NY2d at 380 ).

*222 From the viewpoint of statutory analysis, the majority’s restrictive application of depraved indifference murder is inconsistent with the specific language of Penal Law § 125.25 (2) and our long established precedent construing that statute. According to the majority, the depraved indifference provision allows an individual to be prosecuted for second-degree murder if that person recklessly engages in conduct that creates a grave risk of death to another person and thereby causes the death of another person in the following situations: (1) where only one individual is put at risk of death and the accused “abandons [the] helpless and vulnerable victim in circumstances where the victim is highly likely to die” (majority op at 212) or “engages in torture or a brutal, prolonged and ultimately fatal course of conduct against a particularly vulnerable victim” (majority op at 212) and (2) where more than one person is put at risk of death, regardless of the “helpless[ness]” and “vulnerab[ility]” of the victim (majority op at 212), or whether the defendant “engages in torture or a brutal, prolonged and ultimately fatal course of conduct” (majority op at 212).

This limited construction of the statute is unjustified. The language of Penal Law § 125.25 (2) does not remotely suggest that the extent of helplessness and vulnerability of the victim, or the length and nature of an attack, are prerequisites to a determination of depraved indifference. And the statute cannot plausibly be read to suggest that the Legislature intended the phrase “depraved indifference” to carry one definition in the context of a one-on-one altercation, yet mean something completely different when more than one person is endangered by the conduct of another. Furthermore, the legislative amendments to the second-degree murder statute in 1967 were meant to broaden the application of depraved indifference murder, not restrict it to cases like shooting into a crowd, opening a lion’s cage or detonating a bomb in a public place, examples cited by the majority.

Aside from the problems inherent in the majority’s inability to reconcile its interpretation with the plain language of the depraved indifference murder statute, today’s decision signals a fundamental shift in our homicide jurisprudence. Although it purports to maintain the objective circumstances rule (see majority op at 214-215), the majority acknowledges that it is departing somewhat from the standard articulated in Register (see majority op at 215). Rather than focusing on the grave risk of death, the majority speaks in terms of the “wickedness, evil or *223 inhumanity” of the killer (majority op at 214). A majority of our Court clearly rejected this type of heightened mens rea just three years ago in Sanchez .

“Nowhere in the[ ] modern formulations of depraved mind or depraved indifference murder is there a requirement that, in addition to the extremely reckless nature of the homicidal conduct, there must also be proof in some other sense of an ‘uncommonly evil and morally perverse frame of mind’ ” (Sanchez, 98 NY2d at 383 ).

We also noted that to adopt the position now taken by the majority—to add “further mens rea elements or substantive requirements of subjectively defined characteristics of the defendant’s acts” (id. at 384)—“will only confuse rather than clarify” the distinction between intentional and depraved indifference murder (id.). And in the two cases that followed Sanchez, People v Hafeez ( 100 NY2d 253 [2003]) and People v Gonzalez ( 1 NY3d 464 [2004]), we continued to apply the objective circumstances rule to determine whether there was legally sufficient evidence of depraved indifference murder, and concluded that the planned, premeditated nature of those two killings was consistent only with an intent to kill, not a reckless state of mind.

In this Court’s most recent depraved indifference decision, People v Payne ( 3 NY3d 266 [2004]), a majority held that the point-blank shooting of a person in the chest with a shotgun should not be classified as depraved indifference murder because “a one-on-one shooting or knifing (or similar killing) can almost never qualify as depraved indifference murder” (id. at 272), regardless of other objective circumstances that may be present in a particular case, since murders of this nature demonstrate an inherent “manifest intent to kill” that does not constitute an indifference to human life (id. at 271). In my view, both Payne and the rule enunciated by the majority here conflict with our statement in Sanchez that “purposeful homicide itself is the ultimate manifestation of indifference to the value of human life” ( 98 NY2d at 384 ). Put another way, we recognized in Sanchez that there can be an act that creates “such a high risk of death that it could also lead to the conclusion that it was intentional[, which] supports rather than detracts from characterizing it as evincing depraved indifference to human *224 life” (id.). 2 In fact, in Sanchez , where the defendant unjustifiably shot another person at close range in the chest, we affirmed the depraved indifference murder conviction precisely because “the likelihood of causing death . . . was so obviously severe that it evinced a depraved indifference to human life” (id.). 3

The majority attempts to reconcile its decision with the principles articulated in Sanchez by stating that the depraved indifference murder conviction in that case was upheld only “because ‘others were endangered’ ” (majority op at 213 n 7, quoting People v Payne, 3 NY3d at 272 ). But the Sanchez opinion neither relied on danger to multiple individuals as a decisive factor supporting a finding of depraved indifference, nor suggested that such a fact was crucial to its reasoning. To perpetuate this thin distinction further confuses the state of the law in New York.

I expect that the impact of the majority’s decision will not be limited to undermining the principles espoused in Register and Sanchez . For example, in People v Roe ( 74 NY2d 20 [1989]) we concluded that the death of the victim, who was shot during a game of “Polish roulette,” was properly classified as depraved indifference murder. Roe had loaded a shotgun with a combination of live and dummy shells, aimed it at the victim and pulled the trigger not knowing which type of round had been chambered. In that one-on-one, close-range shooting, the defendant neither “abandoned] a helpless and vulnerable victim” (majority op at 212) nor engaged in a “prolonged and ultimately fatal course of conduct” (majority op at 212), yet we nevertheless upheld the conviction for depraved indifference murder. Although the majority indicates that Roe was properly convicted of depraved indifference murder because it was “extraordinary” (majority op at 213), the majority does not explain how or why that is so in light of the new limitations imposed on depraved indifference murder.

*225 There are other troubling ramifications of this ruling that will not be limited to the second-degree murder statute. The crimes of assault in the first degree and reckless endangerment in the first degree also require that the defendant, “[u]nder circumstances evincing a depraved indifference to human life, [ ] recklessly engage [ ] in conduct which creates a grave risk of death to another person” (Penal Law § 120.10 [3]; see Penal Law § 120.25). Presumably, the majority’s new interpretation of “depraved indifference” in the context of second-degree murder will apply with equal force to these two offenses since identically worded phrases in the same chapter of laws are usually accorded the same meaning. In light of this assumption, substantial case law from this Court will have dubious precedential value, including cases where we concluded that the requirement of “depraved indifference” is satisfied when a single gunshot was fired at point-blank range into the victim’s temple (see People v Tuck, 87 NY2d 828 [1995]), a loaded and cocked handgun was placed against the temple but was not fired (see People v Chrysler, 85 NY2d 413 [1995]) and the victim was beaten and had a meted object plunged into his spinal cord (see People v Lynch, 95 NY2d 243 [2000]). Despite the fact that these circumstances do not fit into either of the two categories of “one-on-one” depraved indifference that the majority identifies (the defendants neither “abandoned] a helpless and vulnerable victim in circumstances where the victim is highly likely to die” [majority op at 212] nor “engage[d] in torture or a brutal, prolonged and ultimately fatal course of conduct against a particularly vulnerable victim” [majority op at 212]) before today it was generally accepted that juries could consider the circumstances surrounding such conduct in evaluating the requirements of depraved indifference. 4

The majority’s primary justification for altering our approach to depraved indifference murder centers on a concern that prosecutors and juries have been conflating this crime with intentional murder in the second degree. Contrary to the majority’s belief, recognition of the long-standing rule of law expressed in Sanchez and Register does not convert “ ‘every homicide, particularly intentional ones . . . into depraved indiffer *226 ence murder’ ” (majority op at 209, quoting People v Payne, 3 NY3d at 270 ). There is a readily understandable distinction between intentional and depraved indifference murders—the killer’s state of mind. As we have recognized, a person can act intentionally by having the conscious objective to cause death, or recklessly by disregarding a known risk of death, but cannot act with both mental states simultaneously with regard to the same result (see People v Trappier, 87 NY2d 55, 58-59 [1995]; People v Gallagher, 69 NY2d 525, 529 [1987]). Thus, simultaneous convictions for both intentional murder and depraved indifference murder cannot stand. But it does not follow that both counts may not be submitted to a jury in the alternative, with the jury to decide which offense, if any, occurred. Since direct evidence of the inner workings of a person’s mind is often unavailable, the determination of the actual mens rea of a killer has traditionally remained in most situations a question of fact for the jury based on all the evidence and the entire circumstances (see People v Smith, 79 NY2d 309, 315 [1992]). The majority effectively takes that decision away from the jury, requiring a judge to preemptively choose between these alternative states of mind, even where it is the defendant who raises a factual dispute concerning mens rea by asserting that he or she did not intend to kill.

Intentional and depraved indifference murder are also distinguishable because once the jury determines that a homicide was committed purposefully, “the depravity of the circumstances under which the intentional homicide is committed is simply irrelevant” (People v Gonzalez, 1 NY3d at 468 ). This is so because an intentional killing is, by its very nature, “ ‘ “wanton . . . deficient in [ ] moral sense . . . [and] devoid of regard of the life or lives of others” ’ ” (People v Russell, 91 NY2d 280, 287 [1998], quoting People v Fenner, 61 NY2d 971, 973 [1984]). It is only when a jury determines that a defendant did not consciously intend to cause death, but acted recklessly, that the jury must further decide whether the objective circumstances of the crime evince a depraved indifference to human life that “equals in blameworthiness intentional conduct purposefully designed to cause death” (CJI 2d [NY] Penal Law § 125.25 [2] [“Depraved Indifference Murder and Reckless Manslaughter Explained”] [revised Aug. 2, 2004]). The purpose of this inquiry is not to differentiate between intentional and depraved indifference murder but to decide whether the defendant created such a grave, “exceptionally high” risk of death that murder, as opposed to *227 manslaughter, has been committed (People v Sanchez, 98 NY2d at 380 ; see People v Register, 60 NY2d at 279 ).

Certainly depraved indifference murder should not be used as a “fallback crime” by prosecutors or juries (majority op at 214). As the distinctions between the intentional murder and depraved indifference murder provisions clearly indicate, this was not the intent of the Legislature and, therefore, is not what courts should charge juries as the law of this State. Rather, depraved indifference murder is a viable, morally equivalent crime, equal in both classification and severity of punishment to intentional murder, yet sufficiently distinguishable both legally and factually. It should be charged and considered by the jury when the facts, as viewed in the light most favorable to the People, could permit a rational jury to conclude that a defendant acted recklessly with a depraved indifference to life.

To presume that conflation is widespread, one must necessarily believe that juries are incapable of distinguishing between intentional and reckless states of mind, and are similarly unable to determine whether the circumstances of the defendant’s actions created a grave, transcendent risk of death justifying a conviction of second-degree murder or a substantial risk of death warranting a manslaughter conviction. I have faith in the jury system—jurors are perfectly capable of making these determinations and it is therefore unnecessary for this Court to create artificial categories of depraved indifference murder that are not supported by the language of Penal Law § 125.25 (2). The majority recognizes that “[o]ftentimes it will not be easy to determine whether a defendant’s conscious objective was to kill or merely to injure” but, nonetheless, “those are the hard choices to be weighed by the trier of fact” (majority op at 214). The majority then inexplicably fails to appreciate that the same is true with respect to distinguishing between an intentional and reckless state of mind—a determination that, although sometimes difficult, nevertheless traditionally has been and should remain the responsibility of a jury (see People v Sanchez, 98 NY2d at 384-385 ).

Ultimately, the majority’s reasoning will not likely clarify this issue for courts and prosecutors, who continue to struggle to determine what this Court’s view on depraved indifference will be on the facts presented in a particular homicide case. Although the majority has left open the possibility that additional categories of one-on-one homicides, other than the two explicitly identified in today’s decision, may qualify for treatment as *228 depraved indifference murder if the circumstances are “extraordinary” (a term it does not define), trial courts and prosecutors are well advised to tread carefully when dealing with depraved indifference murder in the future, lest further injustices occur.

One thing is certain. We no longer have a category of reckless homicide that is comparable in grade and penalty to intentional murder, except in the rare situations authorized by the majority. There is an urgent need for the Legislature to reexamine article 125 of the Penal Law in the aftermath of today’s decision. Undoubtedly, there will be future killings that juries may decide were not committed with an intent to kill, but were the result of reckless acts committed with a grave disregard for life. The policy issue is whether this type of criminal conduct should expose these offenders to criminal penalties more severe than those available for a class C felony conviction of manslaughter in the second degree. The Legislature should explore what societal objectives need to be preserved in article 125 and restructure New York’s homicide statutes to meet those objectives.

The Cases Before Us

Based on the facts presented in these two cases, and applying our established principles of depraved indifference murder as articulated in Register and Sanchez , I conclude that there was legally sufficient evidence to support the second-degree murder conviction of defendant Santos Suarez. Viewed in the light most favorable to the People, the jury could have rationally determined that Suarez did not consciously intend to kill the victim when he became embroiled in a dispute with her, but rather acted recklessly by disregarding the grave risk that his conduct would result in the death of the victim. Suarez testified that he did not intend to kill the victim. Surely jurors are allowed to credit this testimony. Suarez also alleged that it was his girlfriend who produced the knife during their verbal confrontation. If found to be a credible claim by the jury, this was an indication that the attack by defendant was not premeditated (cf. People v Gonzalez, 1 NY3d 464 [2004] [after seeing the victim, the defendant departed and later returned with the murder weapon]; People v Hafeez, 100 NY2d 253 [2003] [retaliatory attack was plotted in advance]). There was also ample evidence that defendant’s actions created such an exceptionally high, grave risk of death that they were properly classified as depraved indifference murder rather than manslaughter. The *229 victim received three stab wounds in her torso, two of which perforated a major vein and caused half of the blood in the victim’s body to pour into her chest cavity. Under these circumstances, the jury’s determination that Suarez was guilty of depraved indifference murder was rational as it was supported by record evidence.

As for defendant Trisha McPherson, I concur with the majority that the evidence was insufficient to justify a depraved indifference murder conviction. Unlike in Suarez, McPherson was not charged with both depraved indifference murder and intentional murder and the People did not assert at trial that she possessed an intent to kill. The only issue was whether there were objective circumstances evincing a depraved indifference to human life. The proof, even viewed in the People’s favor, was that McPherson carried the knife to the scene and during an escalating argument with the victim, inflicted a single stab wound. McPherson then immediately called 911 for help and remained with the victim until she heard sirens indicating that assistance was on the way before departing, demonstrating her efforts to minimize the possibility that the wound she inflicted would prove to be fatal.

Accordingly, in People v Suarez, I would affirm defendant’s conviction; in People v McPherson, I would modify by dismissing the depraved indifference murder conviction. In light of the majority’s decision to remit McPherson for consideration of the proper remedy, it is unnecessary for me to address the proper corrective action that should be taken and I therefore express no view on the propriety of remittal.

Chief Judge Kaye and Judges G.B. Smith, Cipaeick, Rosenblatt and R.S. Smith concur in per curiam opinion; Judges G.B. Smith, Rosenblatt and R.S. Smith concur in a separate concurring opinion; Judge Read concurs in result in a separate opinion; Judge Graffeo dissents and votes to affirm in another opinion.

In People v Suarez: Order reversed and case remitted to the Appellate Division, First Department, for further proceedings in accordance with the opinion herein.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt and R.S. Smith concur in per curiam opinion; Judges G.B. Smith, Rosenblatt and R.S. Smith concur in a separate concurring opinion; Judge Graffeo concurs in result in a separate opinion; Judge Read concurs in result in another opinion.

*230 In People v McPherson: On defendant’s appeal from the order of the Appellate Division affirming the judgment of conviction and sentence as to murder in the second degree, order reversed and case remitted to the Appellate Division, Second Department, for further proceedings in accordance with the opinion herein. On defendant’s appeal from the order of the Appellate Division affirming the order of Supreme Court denying defendant’s CPL 440.10 motion, order affirmed.

. There are two other categories of nonintentional murder in the second degree, including felony murder (see Penal Law § 125.25 [3], [4]).

. We also observed that the commentary to the Model Penal Code, which influenced our depraved indifference murder statute, was consistent with this view (see Sanchez, 98 NY2d at 384 ; Model Penal Code and Commentaries, part II, § 210.2, Comment 4, at 21-22 [1980]).

. Additionally, the rule announced by the majority in this case and Payne essentially creates a mandatory legal presumption that a person intends the ordinary consequences of his or her voluntary acts, which “relieves] the State of the burden of proof enunciated in Winship on the critical question of [the defendant’s] state of mind” (Sandstrom v Montana, 442 US 510, 521 [1979]; see In re Winship, 397 US 358 [1970]).

. See Model Penal Code and Commentaries, part II, § 210.2, Comment 4, at 22 (1980) (“[i]t must be left directly to the trier of fact under instructions which make it clear that recklessness that can fairly be assimilated to purpose or knowledge should be treated as murder and that less extreme recklessness should be punished as manslaughter”).