People v. Feingold

Ciparick, J.

(dissenting). Because I believe that our very recent holding in People v Suarez ( 6 NY3d 202 [2005]) compels a different result, I respectfully dissent.

Viewing the evidence in the light most favorable to the People, as we must, a rational trier of fact could reasonably find, beyond a reasonable doubt, the essential elements of the crime of reckless endangerment in the first degree in this case. 1 Reckless endangerment in the first degree “seeks to prevent and criminalize the risk alone created by an actor’s conduct” as opposed to proscribing “a particular resulting outcome or injury” (People v Chrysler, 85 NY2d 413, 415 [1995]; see also People v Davis, 72 NY2d 32, 36 [1988]). In a prosecution for first-degree reckless endangerment two elements must be proven: first that defendant recklessly engaged in conduct that created a grave risk of death to another person, 2 and second that the defendant did so under circumstances evincing a depraved indifference to human life.

Both parties agree that our precedents construing the phrase “circumstances evincing a depraved indifference to human life” *298 as applied to depraved indifference murder are applicable to the crime of reckless endangerment in the first degree. Even giving the same meaning to the phrase “under circumstances evincing a depraved indifference to human life” as used in both the depraved indifference murder statute and the reckless endangerment in the first-degree statute, defendant’s conviction should be upheld, as nothing in our precedents requires the imposition of a separate culpable mental state — mens rea — to the element of depraved indifference to human life.

In Suarez , we made “clear that depraved indifference is best understood as an utter disregard for the value of human life — a willingness to act not because one intends harm, but because one simply doesn’t care whether grievous harm results or not” ( 6 NY3d at 214 ). Stated differently, a depraved and utterly indifferent actor is someone who does not care if another is injured or killed by his or her extremely dangerous acts, and the failure to give even a thought to such potential harm in the first place can, in and of itself, establish the depraved indifference element of the statute. By requiring a separate mens rea for this second element the majority today has overruled People v Register ( 60 NY2d 270 [1983]), People v Sanchez ( 98 NY2d 373 [2002]) and to a certain extent People v Suarez ( 6 NY3d 202 [2005]), as well as case law dealing with the crime of first-degree reckless endangerment (see e.g. People v Lynch, 95 NY2d 243 [2000]; People v Chrysler, 85 NY2d 413 [1995]; People v Davis, 72 NY2d 32 [1988]).

In Suarez we stated that depraved indifference reflects “wickedness, evil or inhumanity, as manifested by brutal, heinous and despicable acts” ( 6 NY3d at 214 [emphasis added]). A violent explosion in a heavily populated multiple-residence apartment building is a brutal, heinous and despicable act, and one who causes such act exhibits wickedness, evil and inhumanity.

There is no need that a defendant subjectively harbor a “wicked” or “evil” mind, as now required by the majority. Purposefully turning on the gas and creating such an explosion in an occupied apartment building — for whatever reason, here in an attempt to commit suicide — is “ ‘so deficient in a moral sense of concern, so devoid of regard of the life or lives of others, and so blameworthy’ as to render the actor as culpable as one whose conscious objective is to [cause injury to others]” (Suarez, 6 NY3d at 214 , quoting People v Russell, 91 NY2d 280, 287 [1998]). Defendant’s acts in creating an explosive gas *299 environment evince a depraved disregard for the nearly certain consequences of his irresponsible acts. That defendant was focused on his troubles and himself does not render his actions any less irresponsible nor should it provide immunity from prosecution for a felony charge. 3 Conduct evincing depraved indifference to human life is not excusable because defendant’s mind was elsewhere or because he turned a blind eye to the potential danger.

Only six months ago in Suarez , we “departed] slightly from the Register formulation” only to make clear that the “additional requirement of depraved indifference has meaning independent of the gravity of the risk” ( 6 NY3d at 215 ). 4 In defining the second element of depraved indifference murder, we did not, however, create a separate mens rea requiring an analysis of a defendant’s subjective intent. The gravity of risk was created by defendant’s act of flooding his apartment with gas and turning it into a bomb that needed only an ignition source. It was not necessary for the People to prove that in addition to the extremely reckless nature of defendant’s conduct, he acted with an “ ‘uncommonly evil and morally perverse frame of mind’ ” (Sanchez, 98 NY2d at 383 , quoting 98 NY2d at 396 [Rosenblatt, J., dissenting]). When viewed objectively, defendant manifested “an utter disregard for the value of human life” (Suarez, 6 NY3d at 214 ).

We have identified several quintessential examples of conduct — rare circumstances — evincing depraved indifference to human life, among them the placing of a time bomb in a public place (see Suarez, 6 NY3d at 214 ). So too the situation here is so inherently dangerous to the lives of others that it should be likewise classified as one of those rare circumstances demonstrating such an utter disregard for the lives of others evincing an actor’s depraved indifference to human life.

I would thus affirm the conviction and hold as the Appellate Division, not on the strength of Register but on the teachings of *300 Suarez , that “[r]eckless endangerment does not require a showing of extreme wickedness or abject moral deficiency on the part of the perpetrator” (People v Feingold, 22 AD3d 242 [1st Dept 2005], citing People v Narimanbekov, 258 AD2d 417 [1st Dept 1999]). It is sufficient that the defendant recklessly engaged in conduct which created a grave risk of death to others and that this defendant did so under circumstances evincing a depraved indifference to human life as we defined it in Suarez . 5

Furthermore, this construction is in keeping with the plain language of the statute and its legislative intent. Here the Legislature used the term “recklessly” to define the mens rea element of first-degree reckless endangerment (see Penal Law § 15.05 [3]; § 120.25). A defendant thus must act “recklessly.” The additional element that this reckless conduct must be committed “under circumstances evincing a depraved indifference to human life” (Penal Law § 120.25) refers not to a mental state but to the factual circumstances under which the crime occurred (when viewed objectively) evincing a depraved indifference to human life. The Legislature was free to retain the old “depraved mind” language but chose to forgo that in favor of a requirement of indifference (see Suarez, 6 NY3d at 210 n 4).

Lastly, there is no question here that defendant acted extremely recklessly, as even Supreme Court opined. Its further assessment of defendant’s subjective mental state was totally irrelevant. As the trial judge noted, he was expressing a “concern” and would have acquitted defendant if the law was as stated in the dissenting opinions of Register and Sanchez . His expression of concern does not require us to address directly the question of mens rea, as the majority believes it does (majority op at 294). Certainly a trial judge is free to say what he or she believes the law should be but is nonetheless bound to apply the law as it is. We would expect no less from a jury, which is free to privately disagree with the law but is bound to accept it as charged by the judge. The judge here was not required to go beyond his verdict of guilty.

Accordingly, I would affirm the order below.

Chief Judge Kaye (dissenting). I join fully in Judge Ciparick’s *301 dissent. I write separately in light of the majority’s decision to overrule People v Register ( 60 NY2d 270 [1983]), in which I had joined. That extraordinary step is neither necessary, nor warranted, in this case.

Over the years, we have had a number of occasions to revisit Register , most recently in People v Suarez ( 6 NY3d 202 [2005]), barely six months ago. In Suarez this Court, in a per curiam opinion, “ depart [ed] slightly” from the Register formulation by making clear “that the additional requirement of depraved indifference has meaning independent of the gravity of the risk” ( 6 NY3d at 215 ). We did not, however, retreat from a core holding of Register — that the requirement that a defendant act “under circumstances evincing a depraved indifference to human life” does not constitute a mental state.

As we explained in Suarez , there was good reason for our slight departure from Register . Experience had shown that the fine distinction between the “substantial” risk required to prove manslaughter in the second degree and the “very substantial” risk necessary to elevate the offense to depraved indifference murder had provided “insufficient guidance to prosecutors, courts and juries struggling to distinguish between these very different crimes” ( 6 NY3d at 215 ). Further, the proliferation of twin-count indictments alternatively charging defendants who had killed in the course of routine one-on-one confrontations with inconsistent theories had, over time, come to blur the distinction between intentional and depraved indifference murder. At least one federal court had expressed the view that the depraved indifference murder statute had become unconstitutionally vague (see Jones v Keane, 2002 US Dist LEXIS 27418 [US Dist Ct, SD NY, June 6, 2002], revd on other grounds 329 F3d 290 [2d Cir 2003]; St. Helen v Senkowski, 2003 US Dist LEXIS 26642 [US Dist Ct, SD NY, Sept. 19, 2003], revd on other grounds 374 F3d 181 [2d Cir 2004]).

In addressing these concerns, we made clear that depraved indifference “is best understood as an utter disregard for the value of human life — a willingness to act not because one intends harm, but because one simply doesn’t care whether grievous harm results or not” ( 6 NY3d at 214 ). “[M]anifested by brutal, heinous and despicable acts, depraved indifference is embodied in conduct that is so wanton, so deficient in a moral sense of concern, so devoid of regard of the life or lives of others, and so blameworthy as to render the actor as culpable as one whose conscious objective is to kill” {id. [internal quotation *302 marks and citations omitted]). Although three concurring Judges expressed a desire to overrule Register , the Court in Suarez decided the question by declining to take that step. Nothing has changed in the intervening weeks to warrant such action now. Certainly we have seen no evidence that the careful medicine administered in Suarez has failed to cure any perceived problems — indeed, it has scarcely had time to take effect.

The rule currently in place, though it may not be that favored by today’s majority, is susceptible of ready application, and results in no injustice. Indeed, it is far more workable than the rule the majority adopts today, as evidenced by the case at hand.

Defendant, so focused on his desire to take his own life that (we are asked to believe) 1 he gave no thought whatsoever to the life or safety of others, recklessly caused a massive explosion by leaving on the gas jets in a densely occupied residential apartment building in the midst of Manhattan. Miraculously, no one was killed or injured. Both parties agree that the phrase “under circumstances evincing a depraved indifference to human life” must have the same meaning for purposes of the murder statute and the reckless endangerment statute, charged here. That being so, the majority would necessarily hold that this defendant could not have been convicted of depraved indifference murder even if hundreds of people had been killed by the explosion he so recklessly and wantonly caused. I cannot agree.

To my mind, defendant’s extremely reckless conduct squarely evinced “an utter disregard for the value of human life — a willingness to act not because one intends harm, but because one simply doesn’t care whether grievous harm results or not” (Suarez, 6 NY3d at 214 ). The majority would limit this level of disregard for the lives or safety of others to circumstances where the defendant consciously has in mind the likelihood of injury to innocent persons and nevertheless deliberately chooses to proceed with the dangerous course of conduct.

While I agree that depraved indifference includes these situations, I fail to understand why it must be restricted to such cases. In my view, “utter indifference” to human life easily covers instances in which a person undertaking a mortal act fails to consider the potential impact on his or her neighbors. Indeed, the failure to be at all concerned with the lives of others is the very epitome of depraved indifference, regardless of whether *303 such utter indifference arises from a malicious wickedness toward humanity or, as here, a complete unmindfulness of one’s fellows born of total self-absorption.

In People v Payne ( 3 NY3d 266 [2004]), this Court identified two “species” of depraved indifference — one involving acts directed against a particular victim, “marked by uncommon brutality” but without an intent to kill; the other involving defendants who, “lacking the intent to kill (but oblivious to the consequences and with depraved indifference to human life) shoot[ ] into a crowd or otherwise endanger[ ] innocent bystanders” ( 3 NY3d at 271 ). The instant case fits squarely within this second category, which we have never before felt the need to restrict. Rather, in Suarez , where we carefully delineated the rare circumstances in which a one-on-one confrontation might properly result in depraved indifference murder, we noted that the 1 £ [quintessential examples” of depraved indifference involve situations in which more than one person is endangered (Suarez, 6 NY3d at 214 ).

By definition, depraved indifference murder can be found only where there is not an intent to kill. Its starting point is an unintentional killing. Thus, whatever underlying motive a defendant may have with respect to some goal unrelated to the ultimate victims of his actions, it is the conduct itself that demonstrates depraved indifference. Plainly, if a person boarded an empty train car and, in order to commit suicide, derailed the train, thereby killing passengers in other cars, there would be a quintessential depraved indifference murder. The case before us is no different.

If a defendant means to hurt someone, a finding of depraved indifference is precluded (see Suarez, 6 NY3d 202 [2005]; Payne, 3 NY3d 266 [2004]; People v Gonzalez, 1 NY3d 464 [2004]; People v Hafeez, 100 NY2d 253 [2003]). But if, as here, he succeeds in persuading a trier of fact that he didn’t mean to hurt anyone, the Court also forecloses his conviction of any crime requiring a showing of depraved indifference. Legally sufficient evidence of depraved indifference cannot be rendered insufficient by a defendant’s mere denial of guilt of the charged crime — that is, by a claim that “I didn’t mean to hurt anyone; I never thought about whether anyone else might be in danger.”

While defendant’s denial that he considered his neighbors, if believed by the factfinder, would absolve him of culpability for intentional homicide, it is the very proof of his depraved indif *304 ference. A person living in a multiple-residence apartment building who is about to engage in mortally dangerous conduct should give thought to those who might be around him — whether in the same apartment, in the building or in the area. Regardless of whether it simply didn’t occur to defendant to think about others — or whether he did give a thought to their safety but just didn’t care — either way he evinced a depraved indifference to human life. 2 For this he was convicted of a felony and sentenced to five years’ probation. The majority concludes, however, that defendant’s perilous acts made him culpable of no more than reckless endangerment in the second degree — a misdemeanor.

Contrary to the majority, the factfinder here did not find defendant “innocent of the core criminal element, depraved indifference” (majority op at 295 [emphasis deleted]). Rather, the factfinder simply believed that “defendant’s state of mind was not one of extreme wickedness, or abject moral deficiency, or a mischievous disregard for the near certain consequences of his irresponsible act.” But until today, such moral deficiency was not the test of depraved indifference. In other words, it does not matter that the trial judge believed that defendant would not have been guilty of a differently defined crime. Under Register , as well as Suarez, defendant’s subjective mental state with respect to his potential victims was irrelevant. The People did not need to prove, as opined by the trial judge, that defendant acted “because of his lack of regard for the lives of others” (emphasis added), but merely that he acted with such disregard.

Finally, the Court’s limitation on depraved indifference is not restricted to cases involving one-on-one confrontations. Rather, prosecution for the second “species” of depraved indifference— that in which multiple persons are endangered — will now also be foreclosed by a defendant’s claim (if believed) that he or she didn’t mean it. The majority today leaves nothing of depraved indifference but a risk for prosecutors in charging these offenses.

. “A person is guilty of reckless endangerment in the first degree when, under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person” (Penal Law § 120.25).

. Penal Law § 15.05 (3) defines “recklessly” as follows:

“A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.”

. Penal Law § 120.20 defines reckless endangerment in the second degree as when a person “recklessly engages in conduct which creates a substantial risk of serious physical injury to another person.” This crime is a class A misdemeanor.

. Certainly the per curiam opinion in Suarez represented “the concurrence of four . . . necessary to a decision” (NY Const, art VI, § 2 [a]). The majority did not implicitly or “explicitly” overrule Register and Sanchez , nor had they been “de facto overruled in prior cases” (majority op at 296). The concurrence of three in Suarez would have preferred that result, and achieves it here.

. The abuses that we have sought to correct — the prosecution of twin-count indictments under both intentional and depraved indifference theories — are not present here. I see no need to go beyond what we held in Suarez to expand the definitional scope of depraved indifference by holding that proof of depraved indifference now requires an assessment of defendant’s subjective intent, especially in a case involving multiple potential victims.

. Even the smell of gas in a residence should precipitate some investigation because danger is obvious.

. Of course, reckless endangerment in the first degree, like depraved indifference murder, also requires recklessness, which involves the conscious disregard of a known risk (see Penal Law § 15.05 [3]). Defendant does not contend that the trial proof was insufficient to establish the element of recklessness, and the trier of fact expressly found that defendant committed “an extremely reckless and foolish act.”