| People v Little |
| 2011 NY Slip Op 02553 [83 AD3d 1389] |
| April 1, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Emmanuel D.Little, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Richard A. Keenan, J.), rendered July25, 2003. The judgment convicted defendant, upon a jury verdict, of murder in the seconddegree, criminal possession of a weapon in the second degree and criminal possession of aweapon in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously modified as a matterof discretion in the interest of justice and on the law by reducing the conviction of murder in thesecond degree (Penal Law § 125.25 [2]) to manslaughter in the second degree (§125.15 [1]) and vacating the sentence imposed on count two of the indictment and as modifiedthe judgment is affirmed, and the matter is remitted to Monroe County Court for sentencing onthe conviction of manslaughter in the second degree.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of, inter alia,murder in the second degree (Penal Law § 125.25 [2] [depraved indifference murder]),defendant contends that the evidence is legally insufficient to support the conviction. It isundisputed that defendant killed the victim by firing a single shot at close range on a street in theCity of Rochester shortly before midnight. There were no witnesses to the shooting. Inconfessing to the police that he killed the victim and in his testimony at trial, defendant assertedthat he acted in self-defense after the victim, a person previously unknown to him but fromwhom he had attempted to purchase marihuana, threatened to kill him. A prosecution witnesstestified, however, that defendant informed him following the murder that he had killed thevictim while attempting to take a necklace from him. Regardless of defendant's motive, there wasno evidence that anyone other than the victim was endangered. Although defendant was indictedfor both intentional and depraved indifference murder, defense counsel moved for a trial order ofdismissal at the close of the People's proof with respect to the depraved indifference murdercount, contending that the evidence was legally insufficient to support that charge because "theonly evidence adduced in the case is that there was one shot, fired directly at the deceased." Thebasis for defense counsel's motion is supported by the line of cases, beginning with People vHafeez (100 NY2d 253 [2003]) and culminating in People v Suarez (6 NY3d 202, 208 [2005]) and People v Feingold (7 NY3d 288[2006]). As the Court of Appeals stated in People v Payne (3 NY3d 266, 272 [2004], rearg denied 3NY3d 767 [2004]), "a one-on-one shooting . . . can almost never qualify [*2]as depraved indifference murder." Notably, Hafeez wasdecided by the Court of Appeals on the very day that the presentation of evidence in defendant'strial began.
We initially conclude that, if defendant had not submitted proof at trial, defense counsel'smotion for a trial order of dismissal at the close of the People's proof would have been sufficientto preserve for our review defendant's contention that the evidence was legally insufficient tosupport the depraved indifference murder count (cf. People v Hines, 97 NY2d 56, 61[2001], rearg denied 97 NY2d 678 [2001]). Defense counsel's motion essentially"anticipat[ed] the change in the law brought by" theHafeez/Suarez/Feingold line of cases (People v Jean-Baptiste, 11 NY3d 539, 544 [2008]). We reject thePeople's contention that the motion would not have been sufficient to preserve for our review acontention that the evidence was legally insufficient under Feingold (7 NY3d at 294), inwhich the Court of Appeals made it clear that "depraved indifference to human life is a culpablemental state." The Court of Appeals has also expressly stated that "it is incorrect to suggest thatan argument under Suarez is fundamentally different from one based onFeingold" (People v Taylor,15 NY3d 518, 522 [2010]). Thus, where, as here, a motion for a trial order of dismissalwould have been sufficient to preserve for our review a contention that evidence is legallyinsufficient to support a conviction of depraved indifference murder under Suarez, itwould also be sufficient to preserve for our review a contention that it is legally insufficientunder Feingold as well (see Taylor, 15 NY3d at 522).
As defendant correctly concedes, however, defendant's challenge to the legal sufficiency ofthe evidence with respect to the depraved indifference murder count is unpreserved for ourreview because defense counsel failed to renew his motion for a trial order of dismissal afterpresenting evidence (see Hines, 97 NY2d at 61). Nevertheless, under the circumstancesof this case, we exercise our power to address the unpreserved contention as a matter ofdiscretion in the interest of justice (see CPL 470.15 [3] [c]; [6] [a]). Although weacknowledge that the People advance plausible reasons why we should not do so, we cannotagree with the People's reasoning where, as here, a defendant is convicted of a crime that heplainly did not commit (see generallyPeople v DeCapua, 37 AD3d 1189 [2007], lv denied 8 NY3d 983 [2007];People v Packer, 31 AD3d 1169 [2006], lv denied 7 NY3d 869 [2006]).
As set forth above, this was a classic one-on-one shooting involving the potential of harm toonly one individual, which the Court of Appeals made clear in Payne and Suarezwould not support a conviction of depraved indifference murder. While we agree with the Peoplethat the jury could reasonably have concluded that defendant acted recklessly rather thanintentionally (cf. People vRodriguez, 43 AD3d 1317 [2007], lv denied 9 NY3d 1038 [2008]), the scenariopresented herein does not evince the additional mens rea of depraved indifference necessary for aconviction under Penal Law § 125.25 (2) (see Feingold, 7 NY3d 294). Thus, thereis legally insufficient evidence of depraved indifference murder in this case under the law setforth by the Court of Appeals in the line of cases from Hafeez through Feingold.
The People contend that the evidence is legally sufficient to support the conviction under thelaw in effect at the time of defendant's trial (see People v Register, 60 NY2d 270 [1983],cert denied 466 US 953 [1984]), and that we must apply that law in assessing the legalsufficiency of the evidence herein. Even assuming, arguendo, that the definition of depravedindifference murder set forth in Register was still the prevailing law at the time ofdefendant's trial (cf. Hafeez, 100 NY2d at 259), we nevertheless reject the People'scontention. As a general rule, a defendant "is entitled to the application of current principles ofsubstantive law upon his direct appeal from the judgment of conviction" (People v Collins, 45 AD3d 1472,1473 [2007], lv denied 10 NY3d 861 [2008], citing Policano v Herbert, 7 NY3d 588, 603-604 [2006]). In People v Jones (64 AD3d 1158,1159 [2009], lv denied 13 NY3d 860 [2009]), we applied that general rule in a caseinvolving the legal sufficiency of the evidence of depraved indifference murder. The Peoplecontend that, by stating in Jean-Baptiste (11 NY3d at 542) that Feingold "shouldapply to cases brought on direct appeal in which the defendant has adequately challenged thesufficiency of the proof as to his depraved indifference murder conviction," the Court of Appealswas implicitly stating that Feingold applies only in such circumstances, i.e., where thesufficiency of the proof was adequately challenged to preserve the issue for review by anappellate court. We reject that contention. We do not interpret that statement in Jean-Baptisteto mean that the general rule concerning the law to be applied on direct appeals does notapply in cases in which we review a defendant's contention concerning the legal sufficiency ofthe evidence as a matter of discretion in the interest of justice.
The review of the legal sufficiency of the evidence in Jean-Baptiste was on the law,inasmuch as defendant's challenge to the legal sufficiency of the evidence was preserved forappellate review. The Court's statement in Jean-Baptiste (11 NY3d at 542) that the proofhad been "adequately challenged" was made in response to the People's contention that, undercases such as People v Dekle (56 NY2d 835 [1982]), the defendant had not objected tothe jury charge and thus the legal sufficiency of the evidence had to be assessed in terms of thecharge, which reflected the law in effect at the time of the defendant's trial. In rejecting thePeople's contention, the Court in Jean-Baptiste concluded that, in cases in which adefendant preserved the legal sufficiency issue by a motion for a trial order of dismissal, "defensecounsel did not additionally have to take an exception to the court's depraved indifference murdercharge" (id. at 544). We do not interpret the Court's statement as applying to cases inwhich we choose to exercise our authority to review an issue as a matter of discretion in theinterest of justice (see CPL 470.15 [6] [a]). In the absence of an express directive fromthe Court of Appeals to the contrary, we decline to adopt the sweeping new rule proposed by thePeople and thereby to depart from our established practice. Indeed, we note that, in Jones(64 AD3d at 1159), we implicitly rejected the contention now raised by the People. Joneswas decided after Jean-Baptiste, yet we applied the current law of depraved indifferencemurder on defendant's appeal even though the issue had not been preserved by a motion for atrial order of dismissal.
While we conclude that the evidence is legally insufficient to support the conviction ofdepraved indifference murder, we further conclude that the evidence is legally sufficient tosupport the lesser included offense of manslaughter in the second degree because the evidenceunequivocally establishes that defendant recklessly caused the victim's death (Penal Law §125.15 [1]; see People v Bolling, 49AD3d 1330 [2008]). We therefore modify the judgment by reducing the conviction ofmurder in the second degree to manslaughter in the second degree (Penal Law § 125.15)and vacating the sentence imposed on count two of the indictment (see CPL 470.15 [2][a]), and we remit the matter to County Court for sentencing on that conviction (see CPL470.20 [4]). Present—Centra, J.P., Fahey, Lindley, Green and Martoche, JJ.