People v. Payne

OPINION OF THE COURT

Rosenblatt, J.

We once again address the crime of depraved indifference murder and where it fits within the Penal Law’s statutory framework. In the appeal before us, defendant, armed with a 12-gauge shotgun, went to the deceased’s home and shot him at point-blank range. Having acquitted defendant of intentional murder—the first count in a two-count indictment—the court convicted defendant of depraved indifference murder after the court improperly allowed the jury to consider that charge.

The Appellate Division affirmed, and a Judge of this Court granted leave to appeal. We reverse. Defendant did not commit depraved indifference murder.

I.

Defendant and the deceased, Curtis Cook, had been friends for nearly 20 years, but their relationship began to sour in 1998. In March of that year, Cook was arrested and accused of sexually abusing an eight-year-old girl, a playmate of defendant’s daughter. Although defendant knew the girl and her father, he remained friendly with Cook.

On April 27, 1998, defendant drank large amounts of alcohol at a local bar, while Cook drank at home. When defendant’s girlfriend arrived at the tavern to take him home, she told defendant that Cook telephoned her to complain about defendant’s dog. This infuriated defendant, because Cook had been belligerent toward the girlfriend and defendant had warned him never to communicate with her.

Following a telephone conversation with Cook, defendant went to his closet and took out a 12-gauge shotgun. He referred to the weapon as an “elephant gun.” With the loaded weapon in hand, defendant walked next door to confront Cook. After the two exchanged words, defendant shot Cook at point-blank range, killing him. The wound was below the heart and just above the navel. Defendant admitted the shooting and presented a justification defense, which by its verdict the jury rejected.¹

II.

This Court’s recent holdings in People v Gonzalez (1 NY3d 464 [2004]), People v Hafeez (100 NY2d 253 [2003]) and People v Sanchez (98 NY2d 373 [2002]) have made it clear that depraved indifference murder may not be properly charged in the overwhelming majority of homicides that are prosecuted in New York. While we have identified instances in which a killing could qualify as depraved indifference murder, a point-blank shooting is ordinarily not one of them.

Pursuant to Penal Law § 125.25 (2), a person is guilty of depraved indifference murder when “[u]nder circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.” In People v Gonzalez (1 NY3d 464 [2004]), the Court reversed a depraved indifference murder conviction for legal insufficiency. There, the defendant kicked in the door of a barber shop, pulled a gun from his waistband and, at close range, shot the victim several times. We held that because it evinced an intent to kill, a homicide of that type could not constitute depraved indifference murder. Indifference to the victim’s life, we explained, contrasts with the intent to take it. Here, as in Gonzalez, the evidence established defendant’s intent to kill.

The prosecution seeks to distinguish Gonzalez, asserting that here defendant’s conduct was not “overtly intentional” in that he did not plan or contrive the shooting, and that the jury could have concluded that the homicide was merely instinctive—the result of a reckless act in arming himself before confronting Cook. This theory is flawed and reveals a fundamental misunderstanding of the concepts underlying depraved indifference murder.

To begin with, intentional murder does not require planning or contrivance. The premeditation element was eliminated in the 1967 Penal Law (see People v Patterson, 39 NY2d 288, 298 [1976]). Secondly, by the prosecution’s theory, homicides could be routinely categorized and sustained as depraved indifference murder whenever the defendant brought a weapon to a contentious confrontation. Inasmuch as it is “reckless” to arm oneself under those circumstances or to wield a weapon carelessly (the argument goes) any homicide that results could qualify as depraved indifference murder. That is not the law. If it were, every homicide, particularly intentional ones, would be converted into depraved indifference murder.

Moreover, the prosecutor’s position is based on the erroneous notion that the wanton disregard for human life inherent in every intentional homicide amounts to depraved indifference murder. In Gonzalez, this Court rejected that contention, holding that the reckless conduct must be “so wanton, so deficient in a moral sense of concern, so devoid of regard for the life or lives of others, and so blameworthy as to warrant the same criminal liability as that which the law imposes upon a person who intentionally causes the death of another” (1 NY3d at 469, quoting People v Russell, 91 NY2d 280, 287-288 [1998]).

The use of a weapon can never result in depraved indifference murder when, as here, there is a manifest intent to kill. In arguing that a point-blank shooting may constitute depraved indifference murder, the prosecution relies on People v Sanchez (98 NY2d 373 [2002]). In People v Hafeez (100 NY2d 253, 259 [2003]), however, the Court rejected the argument the prosecution makes here. The Court emphasized that Sanchez “involved the sudden shooting of a victim by a defendant who reached around from behind a door and fired into an area where children were playing, presenting a heightened risk of unintended injury.” (Id.)

This Court thus differentiated cases like the one before us (and Gonzalez) from homicides in which a defendant lacking the intent to kill (but oblivious to the consequences and with depraved indifference to human life) shoots into a crowd or otherwise endangers innocent bystanders. People v Jernatowski (238 NY 188 [1924]) is a prominent example of this genre. There, the defendant fired shots into a house, killing the wife of a man with whom he had a confrontation. Similarly, in People v Fenner (61 NY2d 971 [1984]), defendant fired into a fleeing crowd. In People v Russell (91 NY2d 280 [1998]), defendant shot and killed an innocent bystander during a gun battle and in People v Gomez (65 NY2d 9 [1985]), defendant struck a child with a car, accelerated, and killed another child while speeding on crowded sidewalks. The case before us involves a crime directed at a single individual—and, moreover, an intentional killing—as opposed to the generalized depraved indifference exemplified in the above cases.

We have recognized another species of depraved indifference murder in which the acts of the defendant are directed against a particular victim but are marked by uncommon brutality— coupled not with an intent to kill, as in Gonzalez and the case before us, but with depraved indifference to the victim’s plight. Instances include where, without the intent to kill, the defendant inflicted continuous beating on a three-year-old child (see People v Poplis, 30 NY2d 85 [1972]), fractured the skull of a seven-week-old baby (see People v Bryce, 88 NY2d 124 [1996]), repeatedly beat a nine year old (see People v Best, 85 NY2d 826 [1995]) or robbed an intoxicated victim and forced him out of a car on the side of a dark, remote, snowy road partially dressed and without shoes in subfreezing temperatures (see People v Kibbe, 35 NY2d 407 [1974]; see also People v Mills, 1 NY3d 269 [2003]).

As the drafters of the Penal Law put it, depraved indifference murder is “extremely dangerous and fatal conduct performed without specific homicidal intent but with a depraved kind of wantonness: for example, shooting into a crowd, placing a time bomb in a public place, or opening the door of the lions’ cage in the zoo” (Denzer and McQuillan, Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law § 125.25, at 235 [1967]).

Thus, if a defendant fatally shoots the intended victim once, it could be murder, manslaughter in the first or second degree or criminal negligence (or self-defense), but not depraved indifference murder. Moreover, it should be obvious that the more the defendant shoots (or stabs or bludgeons) the victim, the more clearly intentional is the homicide. Firing more rounds or inflicting more wounds does not make the act more depravedly indifferent, but more intentional. Absent the type of circumstances in, for example, Sanchez (where others were endangered), a one-on-one shooting or knifing (or similar killing) can almost never qualify as depraved indifference murder.²

Lastly, and contrary to the dissent, defendant has preserved his claim that he did not commit depraved indifference murder. The dissent relies on People v Hines (97 NY2d 56, 61 [2001]), where the trial court “promptly denied” a motion to dismiss made at the close of the People’s case. Hines does not govern the appeal before us. There, we did not address the issue of preservation where, as here, a trial court reserved decision on a CPL 290.10 motion. When a trial court denies such a motion at the close of the People’s case, a defendant who thereafter introduces proof waives the right to have the court consider the motion solely on the basis of the People’s evidence (see Hines, 97 NY2d at 61). Where, however, the court has reserved decision, the defendant has preserved a claim of insufficiency, and the trial court would then rule on the CPL 290.10 motion as if the motion were made at the close of all the evidence. We decline to expand Hines and elevate preservation to a formality that would bar an appeal even though the trial court, aware that the motion was pending, had a full opportunity to review the issue in question.³

Defendant did not commit depraved indifference murder within the meaning of the statute. Therefore, the order of the Appellate Division should be reversed and the indictment dismissed.

1 . Neither side asked that the jury consider lesser included charges.

2 . People v Roe (74 NY2d 20, 22 [1989]) may be a rare exception—the only one in our decisional law. There, the defendant deliberately loaded a mix of live and dummy shells at random into the magazine of a 12-gauge shotgun. He pumped a shell into the firing chamber, not knowing whether it was a dummy or live round. The defendant pointed the gun directly at the victim and said “Let’s play Polish roulette. . . . Who is first?” (Id.) He then pulled the trigger and discharged a live round into the victim, killing him. This type of shooting is the antithesis of intentional murder because it evinces not an intent to kill, but an indifference—a depraved indifference—to the life or death of the victim. We note that the dissent in Roe argued that the majority mischaracterized depraved indifference murder’s core element as mere recklessness rather than depraved indifference, and that as long as depraved indifference murder and reckless manslaughter were identified as having the same core element—mere recklessness—depraved indifference murder could be improperly used as a proxy for reckless manslaughter (74 NY2d at 29-38; see also People v Sanchez, 98 NY2d at 398, 406-411 [dissenting op]; People v Hafeez, 100 NY2d 253, 260 [2003] [concurring op]). In seeking reversal, defendant, citing Jones v Keane (329 F3d 290 [2d Cir 2003], cert denied 540 US 1046 [2003]), has made that argument. We need not address it, because we conclude that under any hypothesis defendant did not commit depraved indifference murder.

3 . To the extent the dissent relies on People v Kirkpatrick (32 NY2d 17 [1973]), we note that the case did not involve preservation.