| People v Taylor |
| 2009 NY Slip Op 04154 [62 AD3d 605] |
| May 28, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Gregory Taylor, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Frances Y. Wang of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Michael A. Gross, J.), rendered April 21, 2006,convicting defendant, after a jury trial, of depraved indifference murder in the second degree,and sentencing him to a term of 25 years to life, affirmed.
On May 11, 2004, a firefighter conducting a routine building inspection discovered the bodyof 42-year-old Ana Almono Fowler on the roof of a building located at 401 East 187th Street inthe Bronx. A black plastic bag covered Fowler's head and was knotted tightly around her neck.When Fowler's body was found, she was barefooted, her sweatshirt pulled up over one of herbreasts and her jeans unzipped and pulled partially down. One of two beaded necklaces aroundFowler's neck was broken and beads were missing. After the plastic bag was peeled fromFowler's head, a wound above her right eyebrow and a bruise to her right cheek were noted.
The building at 401 East 187th Street is privately owned and used by the City of New Yorkas a temporary housing facility. Defendant resided in the building in apartment 5E until May 6,2004. The hallway of each floor of the building is monitored by two video cameras. Videos inevidence depict defendant approaching Fowler and entering his apartment with her on May 5 at9:08 p.m., stepping back into the hallway and looking at the video camera on May 6 at 2:30 a.m.,and carrying Fowler's body to the roof on the same day at 10:40 a.m. Shortly thereafter,defendant is seen leaving his apartment carrying a piece of white cloth and then reentering theapartment. Five minutes later, defendant is seen leaving the building carrying his belongings in ablack plastic bag. Beads matching those on Fowler's broken necklace were found scatteredthroughout defendant's apartment by Detective Zoltan Karpati on May 13. Bloodstains were alsofound on the bedroom wall and door. On May 18, Detective Karpati took defendant into custodyand escorted him to the precinct. While in custody, defendant made a series of statements ofwhich five were handwritten and one videotaped.
According to defendant's statements, Fowler accompanied him to his apartment afteragreeing to have sex with him in exchange for crack cocaine and money. Defendant stated thatduring the evening Fowler attacked him and he hit her in the head to protect himself. ThereafterFowler became quiet and defendant fell asleep. Defendant stated that upon waking up thefollowing morning, he heard Fowler's heartbeat, but he later denied hearing it. Defendant addedthat Fowler was bleeding and he placed the plastic bag on her head to stop the blood from [*2]spreading and because he couldn't stand to look at her. Thereafter,defendant dumped Fowler on the roof, gathered his possessions and vacated the building. Agrand jury indicted defendant for depraved indifference murder and manslaughter in the firstdegree.
Dr. Zoya Shmuter of the Office of the Chief Medical Examiner of the City of New Yorkperformed an autopsy on Fowler's body. The autopsy revealed a one-half-inch laceration aboveFowler's right eyebrow, purple discoloration of her face and abrasions on her cheek. Dr. Shmuteralso found two abrasions on the right side of her neck. Upon opening the body's neck, Dr.Shmuter found hemorrhaging at the site of the abrasions. The hemorrhaging, Dr. Shmutertestified, was suggestive of a blunt force injury or compression. The autopsy report signed by Dr.Shmuter on May 27, 2004 listed the cause of death as blunt impact of the head and compressionof the neck and chest.
Dr. James Gill, a deputy chief medical examiner, opined that the cause of Fowler's death washomicidal asphyxia. The term, Dr. Gill explained, encompasses smothering, compression of theneck, and compression of the chest. Dr. Gill explained that the purple discoloration of Fowler'sface was consistent with neck compression. The anatomical findings noted by Dr. Gill alsoincluded bruising of the large muscle on the right side of Fowler's neck, indicative of forceapplied to the area. Dr. Gill noted similar bruising on the right side of Fowler's chest. Dr. Gillopined that bleeding is a sign of life in a human body inasmuch as it is indicative of a heartbeat.He further opined that placing a plastic bag over a person's head could cause death by asphyxia.
At the close of trial, citing People vSuarez (6 NY3d 202 [2005]), defendant moved for an order of dismissal based upon thelegal insufficiency of the evidence as follows: "What I suggest here, Your Honor, and thedepraved indifference cases tend to fall into, at least in recent years, instances of child abuse, orabuse of spousal abuse, or abuse by one person against another, whether there's a familialrelationship or not, that is protracted, that is prolonged that occurs not merely as the Court ofAppeals noted in Suarez, in the course of a single incident, as opposed to substantial instanceswhere there is a single incident that is isolated in its framework of time as opposed to continuingover a course of time . . . So, therefore under either theory that the People may bepresenting here, we still are confined to a time period that has a minimum of five and a halfhours, and a maximum of 13 and a half hours, clearly an isolated attack, as opposed to a courseof conduct engaged in which would be considered to have been torturous, where the consciousobjective would have been . . . to torture, to brutalize, to prolong and ultimatelyfatally bring to the end another person's life."[FN*]
Citing People v Feingold (7NY3d 288 [2006]), defendant now challenges the legal sufficiency of the evidence asfollows: "The evidence in this case rationally supported three possibly antagonistic, but equallyplausible hypotheses. Either the victim was in fact dead in the morning when appellant found herturning purple on the floor, in which case appellant killed her during their crack addled strugglethe night before—a manslaughter theory which was argued against by the People andwhich leaves open the question of self defense . . . Or, appellant mistakenly andrecklessly or negligently believed that the unconscious victim was already dead. He tied a bagover her face to avoid looking at her and inadvertently suffocated her—a recklessmanslaughter or negligent homicide. Or, finally, as the prosecutor argued in summation, theappellant found the victim on the floor in the morning, knew that she was unconscious but stillbreathing and tied a bag over her face with a conscious objective to kill her—anintentional murder. No reasonable view of the evidence, however, is consistent with depravedindifference murder."
To preserve a legal sufficiency challenge for appellate review, a defendant must move for atrial order of dismissal, and the argument must be "specifically directed" at the error being urged(People v Hawkins, 11 NY3d484, 492 [2008]). As noted above, defendant's argument at trial was confined to calling intoquestion the time frame with respect to the conduct constituting depraved indifference murder.We disagree with the dissent's view that in making this argument, defendant took the globalposition he now takes that the evidence did not establish the "brutal, prolonged and ultimatelyfatal course of conduct" required under Suarez (see People v Suarez, 6 NY3d at212). In this regard, defendant's appellate challenge to the legal sufficiency of the evidence hasnot been preserved inasmuch as his trial motion to dismiss was based on a different argument (see People v Wells, 53 AD3d 181,188-189 [2008], lv denied 11 NY3d 858 [2008]; People v Crawford, 38 AD3d 680, 681 [2007]). We further declineto reach the issue in the interest of justice.
Defendant also posits that the verdict is against the weight of evidence because the evidenceshows that Fowler was already dead when defendant covered her head with the plastic bag tiedaround her neck. Our weight of the evidence review requires us to first determine whether anacquittal would not have been unreasonable (People v Danielson, 9 NY3d 342, 348 [2007]). If so, we must nextweigh conflicting testimony, review any rational inferences that may be drawn from the evidenceand evaluate the strength of such conclusions (id.). Then, based on the weight of thecredible evidence, we must next decide whether the jury was justified in finding defendant guiltybeyond a reasonable doubt (id.). In conducting the required analysis, based upon theevidence adduced at trial we determine that an acquittal of the charge of depraved indifferencemurder would have been unreasonable. We would note, in any event, that a weighing of theevidence supports the conclusion that Fowler was fatally asphyxiated by defendant's placing ofthe plastic bag over her head and knotting the same around her neck. The conclusion would besupported by defendant's statement that he heard Fowler's heartbeat before placing the bag overher head. The conclusion would have further support in Dr. Gill's testimony that homicidalasphyxia, the cause of death that encompasses smothering, could have been brought about by useof the plastic bag. Dr. Gill's opinion is that Fowler's bleeding was an indication that she was alivewhen smothered by the plastic bag. Concur—Gonzalez, P.J., Moskowitz, DeGrasse andFreedman, JJ.
McGuire, J., dissents in a memorandum as follows: I respectfully dissent as I believe theconviction for depraved indifference murder is not supported by legally sufficient evidence.
In People v Suarez (6 NY3d202 [2005]) the Court of Appeals made clear that when only one person is endangered bythe defendant's conduct, a conviction for depraved indifference murder is authorized in only twocategories of cases, both of which "reflect wanton cruelty, brutality or callousness directedagainst a particularly vulnerable victim, combined with utter indifference to the life or safety ofthe helpless target of the perpetrator's inexcusable acts" (id. at 213). First, "when thedefendant intends neither to seriously injure, nor to kill, but nevertheless abandons a helpless andvulnerable victim in circumstances where the victim is highly likely to die, the defendant's uttercallousness to the victim's mortal plight—arising from a situation created by thedefendant—properly establishes depraved indifference murder" (id. at 212).Second, "the crime is . . . established when a defendant—acting with aconscious objective not to kill but to harm—engages in torture or a brutal, prolonged andultimately fatal course of conduct against a particularly vulnerable victim" (id.).
At the close of the People's case, defendant moved to dismiss the charge of depravedindifference murder on the ground that it was not supported by legally sufficient evidence.Although defendant's argument was multifaceted, he relied in particular on People v Suarezand argued that the evidence established "a time period that has a minimum of five and ahalf hours, and a maximum of 13 and a half hours, clearly an isolated attack, as opposed to acourse of conduct engaged in which would be considered to have been torturous, where theconscious objective would have been . . . to torture, to brutalize, to prolong andultimately fatally bring to the end another person's life." In my view, a fair reading of thisargument is that defendant objected that as a matter of law the evidence did not establishdepraved indifference murder under the second of the two categories recognized inSuarez.
On this appeal, particularly at pages 17 to 18 of his brief, defendant asserts precisely thisclaim. Although he also advances other arguments that appear not to be preserved for review, hisclaim that the evidence did not establish depraved indifference murder under the second categoryrecognized in Suarez is preserved for our review. The People do not and could notcontend that defendant engaged in "torture," and thus the conviction can be sustained only if theevidence is legally sufficient to establish that defendant engaged in a "brutal, prolonged. . . course of conduct against a particularly vulnerable victim." Regardless ofwhether the victim died as a result of being smothered by defendant (through compression of theneck or chest) or as a result of defendant tying the plastic bag around her neck, the evidence didnot establish the kind of "brutal" and "prolonged" course of conduct that, when a single person isendangered by the defendant's conduct, is necessary under the second category recognized inSuarez. To hold otherwise would be inconsistent with the pronouncement inSuarez that "[a] defendant may be convicted of depraved indifference murder when but asingle person is endangered in only a few rare circumstances" (6 NY3d at 212).
The majority understands defendant's motion for a trial order of dismissal to have been"confined to calling into question the time frame with respect to the conduct constituting [*3]depraved indifference murder." Particularly given defense counsel'srepeated reliance on People v Suarez and that Suarez sets forth so unequivocallythe required proof in each of the two categories of cases, I submit that the majority readscounsel's argument too narrowly. The most that fairly can be said is that counsel stressed the"time frame" at various points. But counsel also repeatedly argued that the evidence hadestablished only an "isolated attack" and, as quoted above, contrasted such an attack "to a courseof conduct engaged in which would be considered to have been torturous, where the consciousobjective would have been . . . to torture, to brutalize, to prolong and ultimatelyfatally bring to the end another person's life." Moreover, at the end of his argument, counselargued as follows: "But the bottom line, Judge, is that the nature of what the Court of Appealshas focused on in depraved indifference . . . make[s] it pretty clear that this type ofcharge is one that has a greater applicability in the types of cases that Suarezaddresses as opposed to the type of case this is" (emphasis added).
In opposing the motion, moreover, the prosecutor made clear that he understood counsel'sargument to be a broader one that called into question the sufficiency of the proof in light of therequirements of the two categories of cases identified in Suarez, not merely the "timeframe" of defendant's conduct. Indeed, the prosecutor began his argument in opposition asfollows: "I agree that one of the standards is whether the particular victim is particularlyvulnerable, and in this case it's clear she was. And in this particular case, you can point to aperiod of prolonged suffering the victim would have gone through." Thus, the prosecutorunderstood defendant to be challenging the sufficiency of the proof on the issues of whether thevictim was "particularly vulnerable," whether the defendant had engaged in a "prolonged" courseof conduct and whether that conduct caused "suffering" (i.e., whether it was "brutal"). And thecourt then denied the motion "for the reasons argued persuasively by the prosecutor." Becausethe court thus ruled on each of these three issues, defendant has preserved each of them forreview (People v Feingold, 7 NY3d288, 290 [2006] [although the People contended that defendant's challenge to the sufficiencyof the evidence convicting him of depraved indifference reckless endangerment murder was"unpreserved because he did not plainly present it to the trial court," the challenge was preservedbecause the trial judge "specifically confronted and resolved th(e) issue"]).
Even under the majority's narrow view of defendant's motion to dismiss, the claim that theevidence was legally insufficient to establish a "prolonged" course of conduct is preserved forreview. The victim may have been in defendant's apartment for a "prolonged" period. But thequestion is whether the conduct of defendant that caused her death, even assuming it was"brutal" within the meaning of the term as set forth in Suarez and the cases cited inSuarez, was committed over a "prolonged" period of time. The fatal acts could have beencommitted over a period of mere minutes, and in my view no reasonable juror could concludefrom the evidence that those acts had been committed over a "prolonged" period.
As I would hold that the evidence was legally insufficient to establish that the fatal acts werecommitted either in a "brutal" fashion or over a "prolonged" period, I need not consider whetherit was legally sufficient to establish that the victim was "particularly vulnerable." I note,however, that the People's position that the victim was "particularly vulnerable" depends on thesufficiency of the proof that the victim was alive but unconscious, and that defendant knew it,when he tied the plastic bag around her neck. The majority does not explain how the Peopleproved beyond a reasonable doubt that she was alive or unconscious at that point, or thatdefendant knew she was alive.
Accordingly, I would reverse the conviction for depraved [*4]indifference murder, dismiss the first count of the indictmentcharging that crime and remand for a new trial on the second count of the indictment chargingmanslaughter in the first degree (seeMatter of Suarez v Byrne, 10 NY3d 523 [2008]).
Footnote *: Indeed, the majority inSuarez observed: "although we have reversed depraved indifference murder convictionsin most cases involving isolated attacks, we have held that the crime is nevertheless establishedwhen a defendant—acting with a conscious objective not to kill but toharm—engages in . . . a brutal, prolonged and ultimately fatal course ofconduct against a particularly vulnerable victim" (People v Suarez, 6 NY3d at 212).