| People v Johnson |
| 2009 NY Slip Op 08052 [67 AD3d 448] |
| November 10, 2009 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v FatinJohnson, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Susan Gliner of counsel), forrespondent.
Judgment, Supreme Court, New York County (Ronald A. Zweibel, J., at suppressionhearing; Renee A. White, J., at lineup application, jury trial and sentence), rendered May 18,2004, convicting defendant of murder in the second degree and criminal possession of a weaponin the third degree, and sentencing him to concurrent terms of 25 years to life and 7 years,respectively, affirmed.
In resolving defendant's previous appeal to this Court (43 AD3d 288 [2007]), we did notexpressly state that we rejected defendant's claim that the verdict convicting him of depravedindifference murder was against the weight of the evidence. For this reason, the Court of Appealsreversed and remanded the appeal to us for the purpose of making an assessment of defendant'sweight of the evidence claim (10 NY3d 875, 878 [2008]). We now make explicit what wasimplicit in our prior opinion: the verdict was not against the weight of the evidence. A review ofour prior opinion and its holdings helps explain this finding and our continuing disagreementwith the dissent. Accordingly, we quote below the most relevant portions of the opinion:
"Defendant's principal claim on this appeal is a two-fold challenge to the sufficiency andweight of the evidence supporting the verdict convicting him of depraved indifference murder.Specifically, defendant argues that his action could have supported a finding only of intentional,not reckless, murder and that, even if his conduct were reckless, the proof was deficient withregard to the 'uncommon brutality' essential to a conviction for depraved indifference murder. Asdefendant concedes, however, his challenges to the sufficiency of the evidence are not preservedfor review. Indeed, defendant not only failed to move to dismiss on the specific grounds he raiseson appeal, he failed to raise any specific objection to the sufficiency of the evidence in hismotion to dismiss (see People v Gray, 86 NY2d 10, 19 [1995]; CPL 470.05 [2]).
"We decline to review in the interest of justice the untimely challenges to the sufficiency ofthe evidence that defendant now advances. Moreover, at the most, given defendant's failure tovoice any objection to the court's charge on the elements of the crime of depraved indifferencemurder, any challenge to the sufficiency of the evidence that defendant may be entitled to raise[*2]must be evaluated according to the court's charge as given(see People v Sala, 95 NY2d 254, 260 [2000] [appellate review 'limited to whether therewas legally sufficient evidence . . . based on the court's charge as given withoutexception']; People v Dekle, 56 NY2d 835, 837 [1982] [limiting appellate review towhether 'there is evidence from which a rational trier of fact could find the essential facts of thecrime as those elements were charged to the jury without exception beyond a reasonabledoubt']).
"Measured against this standard, the evidence was plainly sufficient. For several reasonsgrounded in the evidence, the jury reasonably could have concluded that defendant had intendednot to kill but to cause serious physical injury. In this regard, we note that, according to one ofthe two eyewitnesses, defendant was some 30 feet away when defendant fired the pistol. Thus,the jury had a basis for concluding that defendant may not have intended that the bullet strike thevictim where it did. As Justice Sandler stated, 'with the possible exception of a contact wound. . . it is a matter of common experience that people who fire handguns do notalways hit precisely the intended target' (People v Butler, 86 AD2d 811, 815 [1982,Sandler, J., dissenting], revd on dissenting mem 57 NY2d 664 [1982]). In addition,defendant fired only once and the jury heard no evidence that there had been a history ofanimosity between defendant and his brother or even that defendant had a motive to kill. Forthese very reasons, defense counsel urged in his summation that although the prosecution mayhave proven an intent to cause serious physical injury, there was no proof of an intent to kill.
"The instructions to the jury on the elements of depraved indifference murder were entirelyunremarkable in light of the then-applicable law. Under those instructions, the jury reasonablycould have concluded, after finding that defendant intended to cause serious physical injury, thatdefendant acted with the recklessness required for depraved indifference murder (see Peoplev Trappier, 87 NY2d 55, 59 [1995] ['Defendant, for example, could have fired at Hutchinsonwith the intent to cause him only serious and protracted disfigurement and simultaneouslyconsciously disregarded a substantial and unjustifiable risk that . . . he would createa grave risk of . . . Hutchinson's death']; Fama v Commissioner of CorrectionalServs., 235 F3d 804, 812 [2d Cir 2000] [the 'jury could have concluded that Fama intendedto cause bodily harm to Hawkins with a reckless disregard of the ultimate result of that harm']).To be sure, in People v Suarez (6NY3d 202 [2005]), which was decided more than two years after defendant's trial, the Courtof Appeals ruled otherwise, stating that 'one who acts with the conscious intent to cause seriousinjury, and who succeeds in doing so, is guilty only of manslaughter in the first degree' (6 NY3dat 211). Defendant's jury, however was not so instructed and this statement of the law inSuarez only underscores that defendant's challenges to the sufficiency of the evidenceare unpreserved.
"Furthermore, under the instructions given to the jury, the jury also was entitled to concludethat the shooting had been committed '[u]nder circumstances evincing a depraved indifference tohuman life' (Penal Law § 125.25 [2]). The evidence, of course, must be sustained aslegally sufficient whenever there is 'any valid line of reasoning and permissible inferences [that]could lead a rational person to convict' (People v Santi, 3 NY3d 234, 246 [2004] [internal quotation marksand citation omitted]). Here, the jury was instructed that the People were required to prove that'the circumstances surrounding the defendant's reckless conduct was [sic] [*3]so brutal, so call[o]us and extremely dangerous and inhumane as todemonstrate an attitude of total and utter disregard for the life of the endangered person, and,therefore, so blameworthy as to warrant the imposition of the same criminal liability as thatwhich the law imposes on a person who intentionally causes the death of another.' As thiselement was charged to the jury, a rational juror could have concluded that the People had metthis burden.
"Nor can defendant prevail, in the absence of review in the interest of justice, by contendingthat the verdict is against the weight of the evidence. Casting his argument in those terms doesnot relieve defendant of the consequences of his failure to object to the court's charge on theelements of depraved indifference murder (see People v Noble, 86 NY2d 814, 815[1995] ['Contrary to defendant's contention, we hold that the Appellate Division is constrained toweigh the evidence in light of the elements of the crime as charged without objection bydefendant']; People v Cooper, 88 NY2d 1056, 1058-1059 [1996] [same]). Indeed, a panelof this Court recently rejected the contention that in reviewing the weight of the evidence in adepraved indifference murder case the evidence should be appraised in light of the elements ofthat crime as definitively interpreted by the Court of Appeals as of the time of the appeal, ratherthan as the elements were charged to the jury as of the time of trial (see People v Danielson, 40 AD3d174 [2007], lv granted 2007 NY Slip Op 70483[U] [2007]). Nor is defendantpersuasive in arguing that '[a]pplication of the well-established principle that an appellate courtmust conduct its weight review in light of the charge as given does not bar relief. . . because the court's charge was not inconsistent with [the charge to the jury inPeople v Suarez, 6 NY3d 202(2005), supra].' However similar in certain respects the jury instructions may be, thesufficiency claims in Suarez, unlike the sufficiency claims here, were preserved forreview" (43 AD3d at 289-292).
In its opinion, the Court of Appeals did not disturb our holding that the evidence was legallysufficient or our holdings that both the sufficiency and the weight of the evidence had to beevaluated in light of the elements of the crime of depraved indifference murder as the elementswere charged to the jury without exception. That the Court did not disturb our holding that theweight of the evidence must be evaluated in that light is unsurprising. After we decideddefendant's prior appeal, the Court squarely held that "[s]itting as the thirteenth juror. . . the reviewing court must weigh the evidence in light of theelements of the crime as charged to the other jurors, even when the law has changed between thetime of trial and the time of appeal" (People v Danielson, 9 NY3d 342, 349 [2007] [emphasis added]).
Although "the differences between what the jury does and what the appellate court does inweighing evidence are delicately nuanced" (People v Bleakley, 69 NY2d 490, 495[1987]), the fundamental precepts of weight of the evidence review are clear: "[W]eight of theevidence review requires a court first to determine whether an acquittal would not have beenunreasonable. If so, the court must weigh conflicting testimony, review any rational inferencesthat may be drawn from the evidence and evaluate the strength of such conclusions. Based on theweight of the credible evidence, the court then decides whether the jury was justified in findingthe defendant guilty beyond a reasonable doubt" (People v Danielson, 9 NY3d at 348).
Against this backdrop of the governing law, we turn to the relevant facts, limiting ourselvesto those that are not disputed on appeal. Defendant and his brother, Amir, had a heated [*4]argument over money while both men were standing near a publictelephone on the corner of 102nd Street and First Avenue. As Amir started to walk toward theFDR Drive, defendant called out, "Hey, look, remember you have to pay my money back." Amirresponded, "I'm not going to pay you back" and came back toward defendant. When Amir was"coming on top" of defendant, as one of the eyewitnesses put it, defendant dropped the bicyclehe was holding and took out a revolver from the back of his waistband. With that, Amir began torun away from defendant, heading east on 102nd Street. Defendant stood on the sidewalk withhis hands extended in front of him, holding the revolver with both hands. He pulled the trigger,shooting Amir once in the back; as noted above, Amir managed to run some 30 feet beforedefendant shot him. The bullet entered Amir's back on the left side of his "scapula region,"perforated his left lung and his heart, and exited from the left front of his chest. Beforecollapsing, Amir pulled a knife and threw it to the ground. Other evidence is highly relevant toone of defendant's challenges to the weight of the evidence and is discussed below.
Although the principal defense at trial consisted of a challenge to the proof of defendant'sidentity as the shooter,[FN1]overwhelming evidence—including the testimony of eyewitnesses who identifieddefendant and defendant's statement to a former girlfriend shortly after the shooting that "I mighthave killed my brother"—established that he was the shooter, and defendant does not nowcontest the weight of the evidence on that issue. Rather, with one exception, defendant'schallenges to the weight of the evidence relate to the statutory element requiring proof thatdefendant caused his brother's death "[u]nder circumstances evincing a depraved indifference tohuman life" (Penal Law § 125.25 [2]).
Thus, defendant's first claim is based on the contention that even though at the time of trialthe law was clear that this element "focuses not on the subjective intent of the defendant, 'butrather upon an objective assessment of the degree of risk presented by defendant's recklessconduct' " (People v Sanchez, 98 NY2d 373, 379-380 [2002], quoting People vRegister, 60 NY2d 270, 277 [1983], cert denied 466 US 953 [1984]), the trial court'sinstructions anticipated the holding of the Court of Appeals more than two years after the trialthat " 'depraved indifference to human life' is a culpable mental state" (People v Feingold, 7 NY3d 288,296 [2006]). Accordingly, defendant argues that the court instructed the jury that this elementrequires proof of a culpable mental state and that the weight of the evidence does not support afinding that he had such a mental state. This argument can be disposed of readily for its premiseis erroneous: the court did not charge the jury, inconsistently with the law at the time of trial, thatthis element was a culpable mental state. To the contrary, the court's instructions made clear thatit referred to the objective circumstances surrounding the defendant's reckless conduct. Notably,[*5]the dissenters expressly recognized precisely that when theyreferred to "the fact that the jury was charged in this case on the objective standard enunciatedin People v Register (60 NY2d 270 [1983]) rather than the subjective standard lateradopted in People v Feingold" (43 AD3d at 297 [Andrias, J., dissenting]). Nor do thesame dissenters now disavow their prior conclusion and accept defendant's argument that thejury was instructed in accordance with People v Feingold.
Second, defendant advances the one claim that relates not to the element requiring proof thatdeath was caused "[u]nder circumstances evincing a depraved indifference to human life," but tothe required reckless mens rea. Specifically, he argues that "the 'substantial' risk of deathresulting from discharging a single shot on a public street did not create the 'transcendent risk' ofdeath, People v Sanchez, 98 NY2d at 380, or 'risk-creating conduct creating an almostcertain risk of death,' that distinguishes depraved-indifference murder from the substantial risk ofdeath at the heart of manslaughter prosecutions. See Policano v Herbert, 7 NY3d at 600,citing Sanchez, 98 NY2d at 378." This argument asks us to do what we may not do as amatter of law: engage in weight of the evidence review on the basis of the elements as defined bycase law rather than as they were defined by the court's charge to the jury. At no point did thecourt instruct the jury that the risk of death had to be a "transcendent" one or that defendant'sconduct had to "create[ ] an almost certain risk of death." Nor did defendant ever protest theabsence of such instructions. Thus, this argument flies in the face of our previous decision thatany review of the evidence, for weight as well as sufficiency, had to be based on the court'scharge as given without objection. Defendant provides no basis for departing from the law of thecase doctrine and the dissent does not contend we should.[FN2]
Third, defendant argues that under People v Gonzalez (1 NY3d 464 [2004]) and People v Payne (3 NY3d 266[2004]), "[a]t the time of [his] trial . . . a typical one-on-one shooting did notqualify as a depraved indifference murder." This argument suffers from the same fatal flaw asthe last one. At no point did the court instruct the jury that a "one-on-one shooting," typical orotherwise, "did not qualify as a depraved indifference murder." Nor did defendant ever protestthe absence of any such instruction. As the dissent essentially adopts this argument, we discuss itat greater length below.
Fourth, defendant argues that his brother's "own aggressive gesture during the brother's loud,excited argument make [his] response appear to be other than 'callous' and 'inhumane' and moretypical of the type of behavior that, regrettably, sometimes results as arguments escalate." This isunpersuasive. The jury expressly was instructed to make a judgment that in substantial part is amoral one in evaluating the evidence bearing on the requirement of proof that defendant acted"[u]nder circumstances evincing a depraved indifference to human life." Thus, the juryrepeatedly was instructed that "[a] person acts with depraved indifference to human life when inthe judgment of the jury his conduct, beyond being reckless, is so wanton, is sodeficient in the moral sense and [sic] concern, so devoid ofregard for life, the lives of others, and so blameworthy as to warrant the same criminalliability as that which the law imposes on a person [*6]whointentionally causes the death of another" (emphasis added) (see People v Russell, 91NY2d 280, 287-288 [1998]).
Even assuming, arguendo, that a different judgment by the jury on this issue "would not havebeen unreasonable" (People v Danielson, 9 NY3d at 348) "the jury was justified infinding the defendant guilty beyond a reasonable doubt" (id.). That defendant shot hisown brother surely is a fact the jury reasonably could have viewed as highly significant inmaking the moral judgment it was instructed to make. That defendant did so after assuming ashooter's stance and taking aim at his fleeing brother—who clearly presented no threatwhatsoever to him at that juncture[FN3]—also justifies the jury's judgment. That defendant fired the gun—and, as discussedbelow, on a sidewalk on which children and others were present—because his brotherrefused to repay a debt provides additional justification. Of course, moreover, as we held in ourprior opinion, the evidence provided the jury with a substantial basis for concluding thatdefendant intended for the bullet to hit his brother and cause serious physical injury (43 AD3d at290-291). Shooting someone, and shooting him or her in the back, can provide a powerful basisfor a jury finding that the shooter thereby "create [d] a grave risk of death" (Penal Law §125.25 [2]) and was "aware" of and "consciously disregard[ed]" that risk and its "substantial andunjustifiable" nature (Penal Law § 15.05 [3]).
Finally, defendant argues that although "there were bystanders in the area, including twochildren . . . there was no concrete evidence presented that any of them were'actually endangered.' See People v Suarez, 6 NY3d at 213, fn. 7." Relatedly, defendantargues that "[t]he only testimony . . . regarding the children, came from their father,who naturally was concerned for their safety. Even according to him, however, the single bulletpassed over their heads, hitting the intended target and never significantly endangering thechildren." We reject this argument for numerous reasons. First, the jury was never instructed thatthere was any requirement that, apart from defendant's brother, any other person or persons hadto be "actually" or "significantly" endangered, and defendant never objected to the absence ofany such instruction. Thus, defendant once again incorrectly asks us to weigh the evidence inaccordance not with the elements of the offense as they were charged without objection but asdefendant now maintains they should have been charged.
Second, this argument erroneously assumes that in determining the relevantquestion—i.e., whether, as the jury was charged, defendant's conduct was "so wanton,. . . so deficient in the moral sense and concern, so devoid of regard for life, thelives of others, and so blameworthy as to warrant the same criminal liability as that which thelaw imposes on a person who intentionally causes the death of another person"—the jurywas required to consider the path the bullet actually happened to travel. As the jury wasinstructed, however, the focus properly was placed on his "conduct." The conduct hecommitted was firing a shot from a deadly weapon on a sidewalk in the direction of children andothers. Justice Sandler's observation adopted by a unanimous Court of Appeals, again meritsquotation: "it is a matter of common experience that people who fire handguns do not always hitprecisely the intended target" (People v Butler, 86 AD2d at 815). The jury was entitledto judge defendant's conduct in light of this commonsense truth. Furthermore, the contention thatthe children were not "significantly endangered" is ipse dixit, as there was no testimony that thebullet passed over the heads of the children by some[*7]"significant" let alone "safe" margin.
Third, defendant's statement that the children's father "naturally was concerned for theirsafety" undermines his position. The evidence established that the father "got very scared" whendefendant took out the revolver because his children were in the line of fire and he imploreddefendant, "Do not shoot, do not shoot, because my kids are there." Defendant ignored that plea.The point of course is that the jury was entitled to conclude that the fact that defendant was notconcerned for the safety of children was highly relevant to the judgment it was required to makeabout how "wanton, deficient in the moral sense and concern, devoid of regard for life, the livesof others" and blameworthy defendant's conduct was.
Fourth, defendant's current position that no others were significantly endangered stands insharp contrast to his position at trial. The other eyewitness, Winston Nichols, was standing fiveor six feet from defendant and his brother when they were arguing and defendant's brother wasbetween two and four feet from him when he fled past him after defendant drew the revolver.Defense counsel elicited the following testimony on cross-examination of Mr. Nichols:
"Q: As a matter of fact, you were almost in the line of fire, right?
"A: No, I wouldn't say in—yeah, you could say that. Because, you know, five feetaway [from defendant].
"Q: Anything could happen, right?
"A: Anything could happen."
Obviously, the jury reasonably could have decided that it was appropriate in making itsjudgment to consider the very point defense counsel took pains to make oncross-examination.[FN4]
As for the dissent, it asserts that "[t]his one-on-one shooting was not 'marked by uncommonbrutality' (People v Payne, 3 NY3d266, 271 [2004]), and did not evince the mental culpability required for depravedindifference (Sanchez, 98 NY2d at 380)." In relying on the one-on-one character of theshooting and in conclusorily claiming that the shooting was not[*8]"marked by uncommon brutality," the dissent impermissiblyweighs the evidence in light of the elements as the dissent believes the jury should have beeninstructed, not as it actually was instructed. The jury was not instructed to consider, consistentlywith People v Payne, decided after defendant's trial, that the shooting was a"one-on-one" shooting or whether it was "marked by uncommon brutality." Accordingly, neitherthe one-on-one character of the shooting nor the dissent's belief that it was not "marked byuncommon brutality" can support the dissent's conclusion that the jury was not "justified infinding the defendant guilty beyond a reasonable doubt" (People v Danielson, 9 NY3d at348). Surely the jury would be astonished to learn that for these reasons its verdict was notjustified.
The dissent fails in its effort to defend its disregard of the actual instructions to the jury onthe elements of depraved indifference murder and defendant's failure to voice any objection tothose instructions. The dissent reasons that "People v Payne (supra) and People v Gonzalez (1 NY3d 464[2004]) . . . do not hinge on the substance of the court's charge to the jury. Rather,those cases, as well as People v Hafeez (100 NY2d 253 [2003]), made clear that aone-on-one shooting or knifing (or similar killing) can never, with rare exception, qualify asdepraved indifference murder." Because the Court of Appeals did not discuss in Payne,Gonzalez or Hafeez the trial court's instructions to the jury, it hardly follows thatthe instructions are irrelevant to an assessment of the weight of the evidence. Apart from thislogical flaw, the dissent's attempt to defend its disregard of the instructions to the jury on theelements of depraved indifference is contradicted by the unequivocal holding in People vDanielson (supra). To repeat it, "[s]itting as the thirteenth juror . . . thereviewing court must weigh the evidence in light of the elements of the crime as chargedto the other jurors, even when the law has changed between the time of trial and the time ofappeal" (9 NY3d at 349 [emphasis added]). This mandate to the Appellate Divisionsconclusively refutes the dissent's position.[FN5][*9]
As for the dissent's assertion that the shooting "did notevince the mental culpability required for depraved indifference," the dissent explains it only tothe extent it goes on to assert "that defendant's conduct manifested an intent to kill rather thandepravity or indifference to human life, as that term is generally understood."[FN6]For several reasons, this assertion of a "manifest[ ] . . . intent to kill" provides norational reason to hold that the verdict is against the weight of the evidence.
As noted above with respect to the variant of this assertion pressed by defendant, at no pointduring its charge did the court instruct the jury that the risk had to be a "transcendent" one or thatdefendant's conduct had to "create[ ] an almost certain risk of death." Rather, as a majority of thisCourt expressly stated, under the instructions given to the jury it "reasonably could haveconcluded that defendant had intended not to kill but to cause serious physical injury" and, indisregard of a grave risk that death would result, "acted with the recklessness required fordepraved indifference murder" (43 AD3d at 290-291).
Under the rubric of weight of the evidence review the dissent would simply undo theseconclusions, essential to our express holding—which, to repeat, the Court of Appeals didnot disturb—that the verdict was supported by legally sufficient evidence. All of thedissent's arguments—that defendant ostensibly "manifested an intent to kill," the argumentrelying on the one-on-one character of the shooting and the argument that the shooting was not"marked by uncommon brutality"—apply with equal force—or, more accurately,with an equal lack of force—to our express holding that the verdict was supported bylegally sufficient evidence. The dissent does not and cannot point to anything in theevidence—not the fact that defendant assumed a shooter's stance or the fact that the bulletstruck defendant's brother in the back—that would provide the thirteenth juror with a basisfor concluding that although the verdict was supported by legally sufficient evidence, it wasagainst the weight of the evidence.
In support of its position that defendant's conduct "manifested an intent to kill rather thandepravity or indifference to human life," the dissent relies on People v Payne (3 NY3d 266 [2004], supra), ignoring notonly that Payne was decided after defendant's trial, but both that nothing in the court'sinstructions to the jury remotely suggested that one fatal shot could not support a verdict ofdepraved indifference murder, and that the change in the law after the trial is irrelevant (seePeople v Danielson, 9 NY3d at 349). The dissent then claims that Justice Sandler'sobservation that people who fire handguns do not always hit the intended target (People vButler, 86 AD2d at 815) "does not negate defendant's clear intent, under any standard, toshoot his brother in the back and affords no support for any argument that a jury couldreasonably have found that defendant recklessly shot his brother under circumstances evincing adepraved indifference to human life" (emphasis added). Of course, however, we relied on exactlythat observation in support of our conclusion that "the jury had a basis for concluding thatdefendant may not have intended that the bullet strike the victim where it did" (43 AD3d at 290).What is [*10]manifest, accordingly, is that the dissent's claim thatJustice Sandler's observation provides "no support" for the jury's verdict is nothing more than animproper effort to use weight of the evidence review to overturn the conclusion reached by themajority on the prior appeal.
Moreover, although the dissent's position that defendant "manifested an intent to kill" is onethat now benefits defendant, it is exactly the opposite of the position defense counsel argued onsummation. After devoting the bulk of his summation to the argument that defendant was not theshooter, counsel argued to the jury that if it accepted the testimony of the prosecutor's witnesses,
"the distance that the shot was fired, the fact that it was only one shot fired, does not amountto proof beyond a reasonable doubt that [defendant] intended to murder [his brother].
"Now I submit to you that if you fire a gun you, at least, maybe have an intent to causeserious physical injury but to cause the death, there is no proof of that. Look at the diagram, lookat . . . People's Exhibit 5 . . . Look at the location where the people saythat they were, look at the distance between the individuals. There is no testimony that theperson who shot [defendant's brother] shot over him or was standing very close to him. There isat least twenty, thirty more feet away, only one shot fired."
In addition, counsel stressed the absence of testimony "of any animosity, any hatred, any. . . 'motive' for [defendant] to be willing to intentionally murder his brother."Nonetheless, sitting as the "thirteenth juror," the dissent concludes that defendant "manifested anintent to kill."
Finally, the dissent writes that "[t]his is simply not that rare exception alluded to by theCourt of Appeals in People v Payne (3 NY3d at 272 n 2)." No juror listening to thecourt's instructions on the elements of depraved indifference murder, however, would have hadthe slightest reason to believe that there was any rule, let alone a rare exception to that rule,precluding a one-on-one shooting from qualifying as depraved indifference murder. The changein the law after defendant's trial, i.e., the promulgation of that rule in Payne, is irrelevant(People v Danielson, 9 NY3d at 349). So, too, is the change in the composition of thepanel on this appeal.[FN7]Concur—Buckley, Catterson and McGuire, JJ.
Mazzarelli, J.P., and Andrias, J., dissent in a memorandum by Andrias, J., as follows: Irespectfully dissent as I believe the conviction for depraved indifference murder, as viewed inlight of the court's jury charge, which reflected the law that was in effect at the time of the crime(see People v Sanchez, 98 NY2d 373, 379-380 [2002], explaining People vRegister, 60 NY2d 270, 276-277 [1983], cert denied 466 US 953 [1984]), is againstthe weight of the evidence (see People v Noble, 86 NY2d 814 [1995]).
Defendant fatally shot his brother once in the back during a dispute over money in the street.This one-on-one shooting was not "marked by uncommon brutality" (People v Payne, 3 NY3d 266, 271[2004]), and did not evince the mental culpability required for depraved indifference(Sanchez, 98 NY2d at 380). However, the evidence, including testimony that defendantbrandished a revolver during the dispute and fired it at the victim as others, including children,stood nearby, supported a finding that defendant acts were reckless, as the jury determined, butnot depraved (see People v George,11 NY3d 848 [2008]; People vJean-Baptiste, 11 NY3d 539 [2008]; People v Atkinson, 7 NY3d 765 [2006]; People v McMillon, 31 AD3d 136[2006], lv denied 7 NY3d 815 [2006]; People v Dudley, 31 AD3d 264 [2006], lv denied 7 NY3d866 [2006]). Thus, I would reduce defendant's murder conviction to manslaughter in the seconddegree.
Despite the majority's statement that the majority in defendant's previous appeal to this Court(43 AD3d 288 [2007]) implicitly rejected defendant's weight of the evidence argument, suchstatement is not borne out by a plain reading of that decision, which essentially set forth themajority's reasons why the evidence was sufficient based on the court's charge as given withoutobjection. Defendant argues that, even under the standard applicable at the time of his trial, atypical one-on-one shooting did not qualify as a depraved indifference murder. The majorityrejects this argument because at no point did the trial court instruct the jury that a "one-on-oneshooting," typical or not, did not qualify as a depraved indifference murder and defendant neverprotested the absence of any such instruction. However, People v Payne (supra)and People v Gonzalez (1 NY3d464 [2004]), the cases relied on by defendant, do not hinge on the substance of the court'scharge to the jury. Rather, those cases, as well as People v Hafeez (100 NY2d 253[2003]), made clear that a one-on-one shooting or knifing (or similar killing) can never, with rareexception, qualify as depraved indifference murder.
Indeed, Justice Catterson writing for a unanimous Court in People v Dickerson (42 AD3d228, 234 [2007], lv denied 9 NY3d 960 [2007]) recognized that a conviction ofdepraved indifference murder may be found legally insufficient where the evidence demonstratesa "manifest intent to kill." He also recognized the very limited circumstances in which depravedindifference may be found in one-on-one killings, giving two examples not relevant here(abandoning a helpless and vulnerable victim in circumstances where the victim is highly likelyto die, or where a defendant acts not to kill but to harm and engages in torture or a brutal,prolonged and ultimately fatal course of conduct against a particularly vulnerable victim)(id.).
As found by the Court of Appeals, the original memorandum decision in this case did notindicate that the majority weighed the evidence in light of the elements of the crime as chargedto the jury (10 NY3d 875 [2008]); however, the dissent clearly did, finding that "the verdict wasagainst the weight of the evidence (seegenerally People v Cahill, 2 NY3d 14, 57-62 [2003]) with respect to the element ofdepraved indifference to human life, viewed in light of the court's charge to the jury on thatelement (see People v Noble, 86 NY2d 814 [1995])" (43 AD3d at 296).
While this was not a point-blank shooting as was the case in People v Sanchez (98NY2d 373 [2002]) that defendant's conduct manifested an intent to kill rather than depravity orindifference to human life, as that term is generally understood, is evidenced by the majority'sown description of the events, in which defendant took a "shooter's stance" and shot his brotheronce in the back as he ran ("Defendant stood on the sidewalk with his hands extended in front ofhim, holding the revolver with both hands. He pulled the trigger, shooting Amir once in theback").
As the Court of Appeals has said: "[I]f a defendant fatally shoots the intended victim once, itcould be murder, manslaughter in the first or second degree or criminal negligence (orself-defense), but not depraved indifference murder" (People v Payne, 3 NY3d at 272).That people, including trained police officers who fire handguns, do not always hit the intendedtarget (see People v Butler, 86 AD2d 811, 815 [1982, Sandler, J., dissenting], revd ondissenting mem 57 NY2d 664 [1982]), does not negate defendant's clear intent, under anystandard, to shoot his brother in the back and affords no support for any argument that a jurycould reasonably have found that defendant recklessly shot his brother under circumstancesevincing a depraved indifference to human life. This is simply not that rare exception alluded toby the Court of Appeals in People v Payne (3 NY3d at 272 n 2).
Accordingly, I would modify the judgment convicting defendant of murder in the seconddegree and criminal possession of a weapon in the third degree, on the facts, to the extent ofreducing the murder conviction to manslaughter in the second degree and remanding forresentencing on that conviction, and otherwise affirm.
Footnote 1: Indeed, defendant testified inhis own behalf and categorically denied even being near the scene of the homicide. In addition,defense counsel also argued in summation that the People had failed to prove that the shooteracted with intent to kill because, inter alia, a single shot was insufficient to establish that intent.With respect to the depraved indifference charge, counsel advanced only a perfunctory andconclusory argument that the People had failed to prove that "he acted . . . under areckless theory."
Footnote 2: The dissent, however, adopts avariant of this argument when it contends that "defendant's conduct manifested an intent to killrather than depravity or indifference to human life." For the reasons just discussed, thiscontention is meritless. But there are additional reasons, discussed below, why it is untenable.
Footnote 3: For this reason, we areunpersuaded by defendant's reliance on Amir's previous "threatening gesture."
Footnote 4: Relatedly, defendantunpersuasively argues that the facts of this case stand in sharp contrast to the facts of Peoplev Sanchez (98 NY2d 373 [2002]), where the Court of Appeals upheld a depravedindifference murder conviction, because the defendant in Sanchez "fired blindly around adoor into an area where children were playing." In fact, however, the Court's opinion states thatthe eyewitness "first observed defendant walking through the entrance doorway from the hallwaywhere her two grandchildren were playing in the foyer, away from [the decedent], whowas behind the partially opened door. Then she saw defendant abruptly turn around, fire a gunpointed at [the decedent's] chest and flee" (98 NY2d at 375-376 [emphasis added]).Moreover, the evidence established that "the gun was fired not more than 12-18 inches from [thedecedent's] chest" (id. at 376). In short, the evidence that others were endangered is morecompelling here than in Sanchez.
Footnote 5: People v Dickerson (42 AD3d 228[2007], lv denied 9 NY3d 960 [2007]), does not provide a shred of support for thedissent's position. Nothing in Dickerson remotely suggests that the instructions to thejury on the elements of depraved indifference murder are not controlling in assessing thesufficiency or weight of the evidence. Indeed, the instructions to the jury, and whether the jurywas charged in accordance with the holding of People v Feingold (7 NY3d 288 [2006], supra) thatdepraved indifference is a culpable mental state, are not discussed in Dickerson. If thejury was charged in accordance with People v Feingold, the panel in Dickersonwould not have had any reason for discussing the instructions. Alternatively, the panel couldhave determined that regardless of whether the jury was properly instructed on the elements ofdepraved indifference murder, the verdict was supported by legally sufficient evidence and wasnot against the weight of the evidence. In any event, without citing to anything inDickerson, the dissent simply assumes that it stands for the proposition, squarelycontradicted by People v Danielson, that the weight of the evidence can be assessed onthe basis of the elements as they should have been charged to the jury, not as the elementsactually were charged to the jury without objection.
Footnote 6: Of course, how that term is"generally understood," whatever the dissent believes that understanding to be, is irrelevant.Under People v Noble and People v Danielson, only the jury's understanding ofthe term in light of the court's instructions is relevant, a subject the dissent fails to address.
Footnote 7: The dissent maintains that theprior panel did not implicitly reject defendant's argument that the verdict was against the weightof the evidence. The dissent, however, does not mention or come to grips with the fact that weexpressly noted that defendant's "principal claim . . . is a two-fold challenge to thesufficiency and weight of the evidence supporting the verdict convicting him ofdepraved indifference murder" (43 AD3d at 289 [emphasis added]), or the fact that we discussedthe reasons why the weight of the evidence had to be assessed in light of the elements of thecrime as they were charged to the jury (id. at 291-292). Nor does the dissent mention orcome to grips with the fact that we prefaced that discussion with the following statement: "Norcan defendant prevail, in the absence of review in the interest of justice, by contending that theverdict is against the weight of the evidence" (id. at 291). Not surprisingly, the dissent inthe prior appeal never asserted that the majority had committed the elementary mistake of failingto accord defendant his right to weight of the evidence review. Albeit implicitly, the samedissenters now assert exactly that.