| People v McPherson |
| 2011 NY Slip Op 07863 [89 AD3d 752] |
| November 1, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Franklin McPherson, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Tammy J. Smiley, Judith R. Sternberg,and Jason R. Richards of counsel), for respondent. Richard J. Barbuto, Babylon, N.Y., for amicus curiae Nassau County Criminal Court BarAssociation. Robert T. Johnson, District Attorney, Bronx, N.Y. (Anthony Girese, Colleen Phillips, andJoseph McCormack of counsel), for amicus curiae District Attorneys Association of the State ofNew York.
Appeal by the defendant from a judgment of the County Court, Nassau County (Peck, J.),rendered September 16, 2008, convicting him of murder in the second degree, vehicularmanslaughter in the first degree, aggravated driving while intoxicated, operating a motor vehiclewhile under the influence of alcohol, criminal possession of a weapon in the second degree, andcriminal possession of a controlled substance in the seventh degree, upon a jury verdict, andimposing sentence. The appeal brings up for review the denial, after a hearing, of that branch ofthe defendant's omnibus motion which was to suppress physical evidence.
Ordered that the judgment is affirmed.
At around midnight on October 18 to 19, 2007, the defendant went to the Island Rocknightclub in Hempstead with his girlfriend, a friend of his girlfriend, Delroy McCalla, andanother individual, Roman Taylor. After drinking alcohol at the nightclub, the defendant andTaylor left and went to a nearby parking lot. McCalla testified that the defendant did not appearintoxicated at that time. According to McCalla, the defendant stated in the parking lot "I lost myshit," presumably referring to drugs, and the defendant became upset. The defendant went intothe trunk of his car and searched for something. The defendant then began arguing with hisgirlfriend. At approximately 3:15 a.m., several witnesses heard gunshots, but no one reportedhaving seen the defendant fire a gun. The defendant then angrily ordered McCalla to leave withhis girlfriend, which McCalla did, driving the defendant's girlfriend home. The defendant andTaylor then entered the defendant's vehicle, with the defendant driving. When police officersarrived at the parking lot only minutes later, at about 3:20 a.m., the defendant had left, and theofficers recovered several 9-millimeter shell casings in the parking lot.[*2]
Thereafter, at approximately 3:30 a.m., the defendant'svehicle was seen traveling west in the eastbound lanes of the Southern State Parkway at a speedof 70 to 75 miles per hour. According to numerous witnesses, the defendant's vehicle traveled inthe wrong direction from about exit 19 to exit 13, a distance of approximately five miles. Awitness observed the defendant driving directly at him while changing lanes. That witness had toimmediately pull his vehicle onto the shoulder to avoid a collision. This witness saw that thedefendant continued driving the wrong way, and the witness observed the other vehicles on theparkway "[s]plit apart" in order to get away from the defendant. The witness testified that thedefendant "was steadily going, not braking, nothing. He was just going. He was speeding."Meanwhile, another witness, Police Sergeant Edward Schulze, was also driving in the properdirection in the left eastbound lane of the parkway. As Sergeant Schulze passed exit 14, heobserved the defendant's vehicle driving towards him "at a very, very high rate of speed," whichcaused Sergeant Schulze to "violently" turn his steering wheel to the right to avoid a collision.The defendant's car came within inches of Sergeant Schulze's vehicle. According to SergeantSchulze, the defendant "made absolutely no effort to get out of the way."
Near exit 13, the defendant's vehicle, without ever having slowed down, collided with thevictim's vehicle, killing the victim instantly and incinerating the victim's vehicle. Whenemergency services and police arrived on the scene and attempted to remove the defendant fromhis damaged vehicle, the defendant was agitated and his breath emitted a strong odor of alcohol.Following the defendant's arrest, a blood sample taken from him at 4:49 A.M., just over an hourafter the accident, indicated that his blood alcohol content (hereinafter BAC) was 0.19%.
After the defendant was removed from his vehicle, the police began conducting an inventorysearch of the vehicle. The discovery of several 9-millimeter rounds in the trunk, however,transformed the search from inventory to investigatory, during which the police recovered a9-millimeter semiautomatic pistol, what was later determined to be .395 grams of cocainebeneath the front passenger seat, and 41 rounds of 9-millimeter bullets contained in a partiallyloaded magazine and a box in the trunk. The gun recovered from the defendant's vehicle matchedthe shell casings found in the parking lot near the nightclub.
The defendant's contention that the evidence was legally insufficient to support hisconviction of murder in the second degree and criminal possession of a weapon in the seconddegree is unpreserved for appellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484,492 [2008]; People v Gray, 86 NY2d 10 [1995]). In any event, viewing the evidence inthe light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]),we find that it was legally sufficient to establish the defendant's guilt of those crimes beyond areasonable doubt (see People vHeidgen, 87 AD3d 1016 [2011]). A person is guilty of depraved indifference murderwhen, "[u]nder circumstances evincing a depraved indifference to human life, he [or she]recklessly engages in conduct which creates a grave risk of death to another person, and therebycauses the death of another person" (Penal Law § 125.25 [2]).
We disagree with our dissenting colleague's view that there was no evidence that thedefendant deliberately and purposefully proceeded the wrong way down the parkway, inrecognition of the grave risk to human life, and with utter disregard for the consequences. Rather,viewing the evidence in the light most favorable to the prosecution, as we must (see People vContes, 60 NY2d 620 [1983]), the testimony of the witnesses who observed the defendantspeeding directly at them on the parkway, causing those witnesses to swerve in order to avoid acollision, demonstrates that the defendant's mental state was one of depraved indifference tohuman life (see People v Feingold,7 NY3d 288, 294 [2006]).
The defendant asserts that his BAC content and intoxication rendered him unable to form themental state of depraved indifference to human life. To the contrary, the evidence demonstratedthat the defendant helped Taylor leave the nightclub. In addition, McCalla testified that when thedefendant left the nightclub, the defendant "looked okay to [him]," "didn't look like intoxicated tome [sic]," and that the defendant "seemed like he could handle himself." The evidencedid not establish that the defendant was too intoxicated to form the culpable mental statenecessary to prove depraved indifference (see People v Heidgen, 87 AD3d at 1022[involving an [*3]intoxicated motorist traveling the wrong wayon a parkway, stating that the evidence "did not establish that the defendant was intoxicated to adegree of total oblivion or mania" so as to preclude the defendant from forming the requisitemental state]; cf. People v Coon, 34AD3d 869, 870 [2006] [after a nonjury trial, trial court found the defendant "suffered anatypical idiopathic reaction to the substance such that, at the time of the attack, he wasexperiencing cocaine intoxication delirium"]). Thus, the record supports a view of the evidencethat the defendant was coherent and able to form the requisite mens rea prior to leaving theparking lot.
Perhaps instructive on the import of the defendant's BAC content is People v Wells (53 AD3d 181[2008]). In Wells, the intoxicated defendant drove through a red light, striking anothervehicle and killing a passenger in that vehicle. The evidence adduced in that case further showedthat, prior to the fatal collision, the defendant had struck a parked car and narrowly missed hittinganother vehicle when he sped through a red traffic light. Following a nonjury trial, the defendantwas convicted of, among other things, depraved indifference murder and assault in the firstdegree. On appeal, the Appellate Division, First Department, held that, applying the standards setforth in either People v Register (60 NY2d 270 [1983], cert denied 466 US 953[1984]) or People v Feingold (7NY3d 288 [2006]), the evidence was legally sufficient and the verdict was not against theweight of the evidence (see People vWells, 53 AD3d 181 [2008]). Thereafter, the United States District Court for theSouthern District of New York denied the defendant's petition for a writ of habeas corpus (seeWells v Perez, 2011 WL 1453925, 2011 US Dist LEXIS 40712 [SD NY]). Two testsconducted approximately two hours after the incident revealed the defendant's BAC to be 0.25%and 0.27%, respectively. Thus, here, as in Wells, a defendant's statutory intoxication isnot dispositive on the issue of whether a defendant was capable of forming the requisite mensrea.
Here, the evidence adduced at trial distinguishes this case from the cases relied upon by thedefendant, including People vPrindle (16 NY3d 768 [2011]). In Prindle, the defendant, who was concernedabout being arrested for the theft of a snowplow blade, led police on a 2½ to 4 mile chasewhile driving in and out of an oncoming lane of traffic. Ultimately, the defendant drove his vaninto another vehicle, killing a passenger. Also, in Prindle there was evidence that thedefendant was attempting to evade the other cars inasmuch as he crossed over the double solidline and back numerous times. The Court of Appeals in Prindle determined that theevidence was legally insufficient to establish depraved indifference murder. Here, by contrast, therecord does not suggest that the subject accident was the result of the defendant's attempt to fleefrom the police, and there was factual proof that the defendant had several opportunities to ceasehis procession towards oncoming traffic.
Similarly, People v Valencia(14 NY3d 927 [2010]), which also involved an intoxicated motorist traveling the wrong wayon a parkway, can be distinguished. In Valencia, following a bench trial, the finder of factmade a specific finding that the defendant's intoxication rendered him "oblivious" to his travelupon a highway prior to the accident to form the culpable mental state of depraved indifferenceto human life at the time he collided with the complainants' vehicles. Thus, the trial courtdetermined that the evidence did not support his conviction of assault in the first degree. Thatfactual finding was not disturbed by this Court (58 AD3d 879 [2009]), and the Court of Appealswas without power to review it. Although the decision by the Court of Appeals inValencia does not so indicate, the only legal issue addressed in the briefs and arguedbefore the Court of Appeals was whether the defendant's intoxication was too temporally remotefrom his driving to permit his conviction of depraved indifference assault (14 NY3d 927). Here,the defendant's conviction of depraved indifference murder was not based upon his decision tobegin drinking with knowledge that he planned to drive later in the evening. Instead, theconviction in the instant case was established by the eyewitness testimony which, viewed in thelight most favorable to the People, was sufficient to find that the defendant possessed an " 'utterdisregard for the value of human life' " so as to render him as culpable as a person who intendedthe consequences of his actions (People v Feingold, 7 NY3d at 298 [dissent of Ciparick,J.], quoting People v Suarez, 6NY3d 202, 214 [2005]). Moreover, Valencia is factually distinguishable in that therewas no evidence in that case that the defendant drove past various other drivers who had toswerve to avoid hitting him prior to the fatal collision.[*4]
We do not believe that Prindle andValencia stand for the proposition that a defendant who is per se intoxicated (seeVehicle and Traffic Law § 1192), and drives into oncoming traffic resulting in afatality, can never be found guilty of depraved indifference murder or assault because such adefendant is incapable of forming the requisite mens rea of depraved indifference to human life.Rather than supporting the defendant's position, the above-cited cases merely illustrate that, insituations where a defendant is alleged to have acted with depraved indifference to human lifewhile operating a motor vehicle, the nature of the evidence presented is crucial. We agree thatwhen presented with a proper factual predicate, a defendant can be found not guilty of depravedindifference murder as a matter of law. However, we part with the dissent in that we disagree thatthe facts in this case mandate an acquittal as a matter of law. The facts as articulated abovesupport the defendant's conviction of murder in the second degree. Therefore, these cases are allfact determinative. We also note that the state of the law in this area has yet to be fullydeveloped.
Our dissenting colleague correctly notes that, in 2007, the Legislature created the new crimeof aggravated vehicular homicide, a class B felony (see Penal Law § 125.14; L2007, ch 345). We agree that the new crime—which was not in effect at the time of theincident sub judice—was intended to address drunk drivers who kill, but act with a mentalstate that does not rise to the level of depraved indifference to human life. We also acknowledgethat it is unusual for one to be guilty of depraved indifference murder when driving whileintoxicated because of the decisions of the Court of Appeals, previously cited, that limited itsapplication. We also agree with our dissenting colleague that the new crime was not needed torectify a purported legal impossibility of a drunk driver being convicted of depravedindifference murder. A review of the legislative bill jacket supports this view (see BillJacket, L 2007, ch 345).
The dissent posits that in order to convict the defendant of depraved indifference murder, thejury would have had to have found that the defendant was suicidal. This assertion is flawedbecause it is not necessary for the defendant to have intended to kill himself when he drove thewrong way down the parkway. Indeed, to find the defendant guilty of depraved indifferencemurder, a rational trier of fact would not need to find that the defendant had a specific, consciousintent to cause a certain result (seePeople v Gonzalez, 1 NY3d 464, 467 [2004] ["Depraved indifference murder differsfrom intentional murder in that it results not from a specific, conscious intent to cause death, butfrom an indifference to or disregard of the risks attending defendant's conduct"]).
Under the facts presented here, the defendant's action of driving his vehicle towardsoncoming traffic on the parkway for approximately five miles constituted reckless conduct whichcarried with it a grave risk of death and evinced a depraved state of mind. The negation of thisintent, by extreme intoxication, is not supported by the record. For example, the defendant helpedTaylor into the car, he searched for his missing drugs, and McCalla testified that the defendantdid not appear intoxicated. Thus, we cannot conclude that the evidence of the defendant's guilt ofmurder in the second degree was legally insufficient to support that conviction. Moreover, uponour independent review pursuant to CPL 470.15 (5), we are satisfied that the verdict of guilt as todepraved indifference murder was not against the weight of the evidence (see People v Danielson, 9 NY3d342 [2007]).
Likewise, we find that the evidence was legally sufficient to establish the defendant's guilt ofcriminal possession of a weapon in the second degree, and that the verdict of guilt as to thatcrime was not against the weight of evidence.
Contrary to the defendant's contention, the hearing court properly denied that branch of hisomnibus motion which was to suppress the physical evidence seized from his vehicle. Theevidence adduced at the suppression hearing demonstrated that the search of the defendant'svehicle was authorized as a warrantless search falling within the automobile and emergencyexceptions to the warrant requirement (see Arizona v Gant, 556 US 332 [2009];People v Molnar, 98 NY2d 328, 332 [2002]; People v Blasich, 73 NY2d 673, 678[1989]; People v Belton, 55 NY2d 49, 53-55 [1982]; People v Mitchell, 39 NY2d173 [1976], cert denied 426 US 953 [1976]).
Further, the defendant was not deprived of the effective assistance of counsel, as [*5]defense counsel provided meaningful representation (see Peoplev Benevento, 91 NY2d 708, 712 [1998]; People v Baldi, 54 NY2d 137, 147 [1981]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80, 85-86[1982]). Florio, J.P., Dickerson and Leventhal, JJ., concur.
Belen, J., dissents and votes to modify the judgment, on the law, on the facts, and as a matterof discretion in the interest of justice, by reducing the conviction of murder in the second degreeto manslaughter in the second degree, and vacating the sentence imposed on that count and, as somodified, to affirm the judgment and remit the matter to the County Court, Nassau County, forresentencing on that count with the following memorandum.
Belen, J. (dissenting). The defendant spent the evening of October 18, 2007, drinking withhis girlfriend, cousin, and a friend at a nightclub in Hempstead, New York. According to thefriend, in a parking lot near the nightclub later that evening, the defendant became upset athaving lost something, appeared to be looking for the lost item in the trunk of his vehicle, andbegan arguing with his girlfriend. At approximately 3:15 a.m., several witnesses heard gunshots,although no witness reported seeing the defendant fire a gun. The defendant then angrily orderedthe friend to leave with his girlfriend. The friend complied and drove the defendant's girlfriendhome. The defendant and his cousin then entered the defendant's vehicle, with the defendantdriving. Meanwhile, when police officers arrived at the parking lot only minutes later, at about3:20 a.m., the defendant was no longer there; the officers recovered several 9-millimeter shellcasings in the parking lot.
Minutes later, at approximately 3:30 a.m., the defendant's vehicle was seen traveling west inthe eastbound lanes of the Southern State Parkway at a speed of 70 to 75 miles per hour.According to numerous witnesses, the defendant's vehicle traveled in the wrong direction fromapproximately exit 19 to exit 13, a distance of approximately five miles, periodically changinglanes, which forced other drivers to swerve aside to avoid a collision. Around exit 13, thedefendant's vehicle, without ever having slowed down, collided with the victim's vehicle, killingthe victim instantly and incinerating the victim's vehicle. The collision totaled the defendant'svehicle, with the defendant and his cousin pinned inside.
When emergency services and police arrived and began attempting to remove the defendantfrom his vehicle, the defendant was agitated and his breath emitted a strong odor of alcohol.After the defendant was arrested, a blood sample taken from him at 4:49 a.m., just over one hourafter the accident, indicated his blood alcohol content to be 0.19%.
"The standard for reviewing the legal sufficiency of evidence in a criminal case is whether'after viewing the evidence in the light most favorable to the prosecution, any rationaltrier of fact could have found the essential elements of the crime beyond a reasonable doubt' "(People v Contes, 60 NY2d 620, 621 [1983], quoting Jackson v Virginia, 443 US307, 319 [1979]).
Under the Penal Law, "[a] person acts recklessly with respect to a result or to a circumstance. . . when he [or she] is aware of and consciously disregards a substantial andunjustifiable risk that such result will occur or that such circumstance exists. The risk must be ofsuch nature and degree that disregard thereof constitutes a gross deviation from the standard ofconduct that a reasonable person would observe in the situation" (Penal Law § 15.05 [3]).Proof of intoxication "will not negate the presence of a 'reckless' mental state" (People vJohnson, 277 AD2d 702, 704 [2000]; see Penal Law § 15.05 [3]; People v Lampon, 38 AD3d 682,682-683 [2007]). Rather, "[a] person who fails to perceive a substantial and unjustifiable risk byreason of his [or her] intoxication acts recklessly" (People v Elysee, 12 NY3d 100, 105 [2009]).
In 2007, the Legislature created the new crime of aggravated vehicular homicide (seeL 2007, ch 345), a class B felony punishable by an indeterminate prison sentence rangingfrom 8
A person who acts with depraved indifference has no specific, conscious intent to cause aspecific result, i.e., the death of another person or persons, but possesses the mens rea of beingindifferent to, unconcerned with, and/or acting with complete disregard of the grave risks ofdeath created by his or her conduct (see Penal Law § 125.25 [2]; People v Feingold, 7 NY3d 288,294, 296 [2006]; People vGonzalez, 1 NY3d 464, 467-468 [2004]). "[D]epraved indifference is best understood asan utter disregard for the value of human life—a willingness to act not because one intendsharm, but because one simply doesn't care whether grievous harm results or not. Reflectingwickedness, evil or inhumanity, as manifested by brutal, heinous and despicable acts, depravedindifference 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 asculpable as one whose conscious objective is to kill" (People v Suarez, 6 NY3d 202, 214 [2005], quoting People vRussell, 91 NY2d 280, 287 [1998]). "To rise to the level of depraved indifference, thereckless conduct must be so wanton, so deficient in a moral sense of concern, so devoid of regardof the life or lives of others, and so blameworthy as to warrant the same criminal liability as thatwhich the law imposes upon a person who intentionally causes the death of another" (Peoplev Gonzalez, 1 NY3d at 468-469 [internal quotation marks omitted]; see e.g. People vSanchez, 98 NY2d 373 [2002] [firing a gun from behind a partially closed door toward anarea where children were playing]; People v Gomez, 65 NY2d 9 [1985] [driving avehicle several blocks at excessive speeds and hitting other vehicles and driving onto sidewalks;continuing to drive even after striking and killing a child riding a bicycle on a sidewalk; refusingpassenger's entreaties to stop on the ground that he had already killed someone, after which thedefendant struck and killed a second child riding a bicycle on a sidewalk]; People vJernatowski, 238 NY 188 [1924] [firing a gun into a home where the defendant knew peoplewere present]).
The horrific consequences of the defendant's reckless conduct of driving a vehicle whilehighly intoxicated cannot be understated. However, for the reasons set forth below, as a matter oflaw, the evidence was not legally sufficient to establish that he acted with depraved indifference.Accordingly, upon reaching this issue in the interest of justice, I would reduce his conviction for[*7]depraved indifference murder to manslaughter in the seconddegree, vacate the sentence imposed on that count, and remit the matter for resentencing on thatcount.
To reiterate, the defendant, who had a blood alcohol content more than twice the legal limit,drove at night on a parkway for several miles in the wrong direction at a high rate of speed.Although several oncoming drivers swerved out of the defendant's path over the course of severalmiles, the People produced no evidence at trial which demonstrated, beyond a reasonable doubt,that the defendant understood that he was driving the wrong way down the parkway prior to thehead-on collision, with utter disregard for the consequences, as might be evident with, forexample, evidence that the defendant's vehicle continued on its course after colliding with anobject or other vehicle (see People v Gomez, 65 NY2d 9 [1985]; cf. People v Carrington, 30 AD3d175 [2006]). In short, there is no evidence that the defendant deliberately drove his vehiclethe wrong way down the parkway (see People v France, 57 AD2d 432, 434 [1977]).
Moreover, even accepting that the defendant was attempting to flee the police who respondedto reports of gunfire in the parking lot near the nightclub, from which one could infer that hisreckless driving resulted from his attempt to elude capture by the police, it does not follow thathis conduct evinced a depraved indifference to human life (see People v Prindle, 16 NY3d 768 [2011]; People vFrance, 57 AD2d at 434; see alsoPeople v Heidgen, 87 AD3d 1016, 1034-1035 [2011]).
The majority's attempt to distinguish People v Valencia (14 NY3d 927 [2010]) is unavailing. InValencia, the evidence demonstrated that the defendant's blood alcohol content wasapproximately three times more than the legal limit, he drove at night in the wrong direction ofthe Wantagh State Parkway at a high rate of speed, and did not stop or slow down despiteattempts by other drivers to warn him of the dangers he was creating. After traveling four miles,the defendant crashed head-on into one vehicle and then careened into another car. The Court ofAppeals held that such evidence, which is factually indistinguishable from the instant case,demonstrated intoxication and reckless driving, but not depraved indifference and, accordingly,affirmed this Court's vacatur of the defendant's conviction and the sentence imposed thereon forassault in the first degree (id., affg 58 AD3d 879 [2009]).
I am also unconvinced by the majority's attempt to limit the holding of Valenciabased on the assertion that the briefs submitted to the Court of Appeals argued only "whetherthe defendant's intoxication was too temporally remote from his driving to permit his convictionof depraved indifference assault." The majority (memorandum) opinion in Valencia isclear, stating, "[t]here is insufficient evidence to support a conviction for depraved indifferenceassault. The trial evidence established only that defendant was extremely intoxicated and did notestablish that he acted with the culpable mental state of depraved indifference" (14 NY3d at927-928). The majority opinion clearly did not limit itself to the issue of temporal remotenessbetween the defendant's act of drinking to the point of extreme intoxication and the later act ofoperating a vehicle.
Further, in her concurring opinion, Judge Graffeo explained:
"The Appellate Division reversed the first-degree assault conviction, concluding thatdefendant's state of mind before he drove home was too remote in time from the car crash. Thereversal of that conviction reduced defendant's culpability from a class B felony to the class Dfelony of second-degree assault and a five-year determinate prison sentence.
"We are now affirming the reduction [of the conviction for assault in the first degree]to assault in the second degree, but on narrower grounds, with which I concur,because of the lack of evidence to support all the elements of depraved indifferenceassault" (id. at 928 [Graffeo, J., concurring] [emphasis added]).
The only discussion of the temporal remoteness issue was set forth in Judge Jones's [*8]concurrence, in which he initially stated, "[w]hile I agree with theresult in the majority's memorandum, I write separately to express my position on the necessity ofa temporal connection between mens rea and actus reus in the context of depraved indifferenceoffenses" (id. at 931 [Jones, J., concurring]). Judge Jones noted that in traditionalAnglo-American law, there must be a concurrence between the mens rea and actus reus(id. at 933). Reviewing the evidence at bar, he agreed with our determination that therewas no such concurrence between the mens rea of depraved indifference assault at the time of thecollision and the actus reus of the defendant's earlier drinking (id. at 934). Accordingly,he concluded that the "defendant's state of mind when he consumed the alcohol was tootemporally remote from the act of driving to support a conviction of assault in the first degree"(id.).
As one commentator has explained:
"Although intoxication will not negate recklessness, it can negate the additional mensrea required for 'depraved indifference.' In People v. Valencia, the Court of Appealsheld that the culpable mental state of depraved indifference was not established by evidenceshowing only that the defendant was extremely intoxicated when his driving caused a fatalaccident. The defendant's emotional state before or after the crime, which was previouslyconsidered relevant to recklessness but not to 'depraved indifference,' is presumably now relevantto both mens reas" (Fahey, 6 NY Prac, Criminal Law § 6:13, at 365, 2011 Supp, at 68 [3ded] [footnotes omitted]).
Here, viewing the evidence in the light most favorable to the prosecution, there is nothingfrom which a jury could reasonably infer that the defendant possessed the mens rea necessary fordepraved indifference: a tragic combination of both awareness and total disregard for the fact thathe was driving at high speed the wrong way down the parkway, which was conduct that placedboth the defendant and others traveling eastbound on the parkway at grave risk of death. In effect,to convict the defendant of depraved indifference murder, the jury would have to find that thedefendant was suicidal. There is no basis for such a finding. Rather, the evidence indicates thatthe defendant was highly intoxicated and upset with his girlfriend and/or with having lostsomething in the parking lot near the nightclub.
Moreover, even accepting the majority's contention that the defendant's intoxication did notrender him incapable of forming the requisite mens rea of depraved indifference, there isnevertheless legally insufficient evidence that the defendant actually possessed such mens rea(cf. People v Gomez, 65 NY2d 9 [1985]). Without minimizing the defendant's conduct orthe tragic results, I contend that glaringly absent from the evidence adduced at trial is evidence,for example, that the defendant intentionally drove in the wrong direction on the parkway at ahigh rate of speed or continued on his path once he realized he was driving in the wrong directionon the parkway, conduct which could demonstrate "an utter disregard for the value of humanlife" (People v Suarez, 6 NY3d at 214). Instead, the evidence demonstrated that thedefendant, by reason of his severe intoxication, acted recklessly by failing to perceive that he wasdriving the wrong way on the parkway (see People v Valencia, 14 NY3d at 927-928;People v Elysee, 12 NY3d at 105).
"Reckless homicide cannot be elevated into depraved indifference murder merely because theactions of the defendant created a risk of death, however grave or substantial that risk may havebeen . . . '[C]ircumstances evincing a depraved indifference to human life' are notestablished by recklessness coupled only with actions that carry even an inevitable risk of death"(People v Suarez, 6 NY3d at 213-214, quoting Penal Law § 125.25 [2]). Putdifferently, in general, a defendant who possesses the mens rea of depraved indifference intendsto commit the act that results in the death or injury of another person, but is depravedlyindifferent to the grave risk of death or injury to others as a consequence of his or her conduct,i.e., intentionally "opening the lion's cage at the zoo; placing a time bomb in a public place;poisoning a well from which people are accustomed to draw water; opening a drawbridge as atrain is about to pass over it and dropping stones from an overpass onto a busy highway"(People v Suarez, 6 NY3d at 214). In short, "[f]ocus [*9]on the three statutory factors that distinguish depraved indifferencemurder—circumstances evincing a depraved indifference to human life, recklessness and agrave risk of death to another person—should . . . make clear that the statuteproperly applies only to the unusual case" (id. at 216 [internal quotation marks omitted]).
In sum, there is no valid line of reasoning that could support the jury's conclusion that thedefendant possessed the mental culpability required for depraved indifference murder.
Any reliance by my colleagues in the majority on People v Wells (53 AD3d 181 [2008]) would be misplaced. InWells, the defendant, with a blood alcohol content of between 0.25% and 0.27%, droveerratically and at an excessive speed through the streets of the lower east side of Manhattanbefore 3:00 a.m. on June 14, 2004, ignoring numerous admonitions by other drivers to slowdown. The defendant eventually struck another vehicle, killing its passenger and seriouslyinjuring its driver, and was convicted after a nonjury trial of, inter alia, depraved indifferencemurder and depraved indifference assault. The First Department affirmed, relying on the nowoverruled depraved indifference standard of People v Register (60 NY2d 270 [1983];see People v Wells, 53 AD3d at 189-190). Since this case did not apply theRegister standard, the holding of Wells is not applicable here. Further, the Courtof Appeals' holding in People vValencia (14 NY3d 927 [2010]) discussed, supra, which is factuallyindistinguishable from Wells, indicates that Wells should no longer be followed.
I am similarly unpersuaded by the dicta in Wells that the depraved indifferencemurder conviction would be upheld under the current depraved indifference standard of People v Feingold (7 NY3d 288[2006]; see People v Wells, 53 AD3d at 192), which is the standard applicable here. Infinding that if applied, the Feingold standard would also be met, the Wells Courtstated that the "defendant's mental state at the time of the collision . . . [was] notdispositive;" rather, the defendant's "mens rea of depraved indifference . . . [was]established by circumstantial evidence demonstrating that defendant made a conscious decisionto drink and then, after consuming an excessive amount of alcohol to the point of becoming'totally wasted,' to drive on city streets at a high rate of speed through red traffic lights, therebycreating a grave risk of death to pedestrians and occupants of other vehicles" (id. at 193).We have previously rejected the temporal remoteness between the actus reus of drinking alcoholto the point of inebriation and the mens rea at the point of collision (see People v Valencia, 58 AD3d879 [2009], affd 14 NY3d 927 [2010]).
In addition to finding the evidence of second degree (depraved indifference) murder legallyinsufficient, I also find that the conviction on that count is against the weight of the evidence.Although we have a responsibility to conduct an independent review of the weight of theevidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accordgreat deference to the jury's opportunity to view the witnesses, hear the testimony, and observedemeanor (see People v Mateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946[2004]; People v Bleakley, 69 NY2d 490, 495 [1987]).
The People's medical expert, Dr. William Closson, testified that a blood alcohol content of0.19% would negatively affect an "individual's cognitive abilities, meaning the thought process,the ability to think clearly and respond to questions . . . The person's psychomotorfunctions, such as moving muscles and responding to various stimuli, would be negativelyaffected. The ability to perceive objects in the environment would be negatively affected. Andthen the ability to respond to those objects would be negatively affected." He further explainedthat the effects of alcohol "get . . . more pronounced . . . the higher theblood alcohol concentration becomes."
He specified that an intoxicated person's vision becomes blurred and he or she develops"tunnel vision," meaning he or she "cannot see as effectively to either side," but essentially seesonly "straight ahead." Moreover, Dr. Closson explained that an intoxicated person's perceptionand responses to stimuli are delayed. Specifically, while a sober individual's response to stimuliwould be "a fraction of a second," an intoxicated individual responding to the same stimuliwould react in one to three seconds.
Dr. Closson also testified that an intoxicated person's ability to do "divided attention [*10]tasks," such as driving, is "most affected" by alcohol. Thus, whiledriving requires equal attention to steering, acceleration, braking, direction signals, andresponding to objects in the environment, an intoxicated person may devote all of his or herattention to only one or two of those tasks. Although he testified on direct examination that anintoxicated person may be more inclined to participate in risky behavior, such as driving thewrong way on a roadway, on cross-examination, he conceded that an intoxicated person may beunaware that he or she is driving the wrong way on a roadway.
Although the defendant's friend testified that in his view, the defendant was not toointoxicated when they exited the nightclub together, the defense conceded at trial the accuracy ofthe blood test results, which showed the defendant's blood alcohol content to be 0.19% over onehour after the incident. Further, an officer who arrived at the scene moments after the crashdescribed the inside of the defendant's car as having an "extremely strong odor" of alcohol. Afterthe defendant was removed from his vehicle and placed under arrest for driving whileintoxicated, the officer described the smell of alcohol coming directly from the defendant.
Significantly, the People presented no evidence that the defendant intentionally entered theparkway in the wrong direction and/or continued to drive the wrong way after realizing that hewas driving against traffic. Indeed, one witness, an off-duty sergeant for the New York CityPolice Department, testified that he swerved out of his lane to avoid being hit by the defendant'svehicle, and described the defendant's vehicle as staying in the lane closest to the barrier and notreacting to the sergeant's car as it swerved out of the path of the defendant's vehicle. Sucheyewitness testimony is consistent with that of the People's expert, Dr. Closson, who explainedthat intoxicated persons experience tunnel vision and lack the ability to concentrate on thenumerous tasks required to drive.
Although the People presented the testimony of numerous witnesses who saw the defendant'svehicle traveling in the wrong direction on the parkway, none of those witnesses's testimonyestablished that the defendant understood that he was traveling in the wrong direction. Whilesome witnesses attempted to warn the defendant of his mistake by honking their horns, there isno evidence that the defendant heard those warnings or understood that the warnings wereintended for him. Nor did the People's collision reconstruction expert provide any testimonyindicating that the defendant may have intentionally driven the wrong way down the parkway. Insum, no credible evidence demonstrated that the defendant deliberately drove his vehicle thewrong way with an utter disregard for the value of human life, and thus acted with depravedindifference. Accordingly, I agree with Justice Cohen's statement in his dissent in People vHeidgen:
"I cannot agree with the majority's attempts to distinguish the Court of Appeals' decisions inPeople v Prindle (16 NY3d 768[2011]), and People v Valencia (14NY3d 927 [2010]), from the facts before us. To distinguish People v Prindle wouldnecessitate a finding that the evasion of police vehicles in the course of a high-speed chase whilesober is a less culpable state of mind than driving on the wrong side of a highway at 70 miles perhour, at night, in a highly intoxicated state. Likewise, distinguishing People v Valencianecessitates finding, in the evidence presented to the jury, that the defendant was neither totallyoblivious nor incapable of apprehending the gravity of his actions due to his intoxication. I do notsubscribe to such conclusions" (People v Heidgen, 87 AD3d at 1034 [Cohen, J.,dissenting]).
In sum, the weight of the evidence does not support a finding that the defendant, acting withdepraved indifference, i.e., "an utter disregard for the value of human life" (People vSuarez, 6 NY3d at 214), knowingly drove the wrong way down the parkway. The defendantmay have been the instrument of death. However, there is no evidence that he knowingly actedwith utter disregard for the grave risk of death or serious injury he was creating. Rather, theevidence established that the defendant acted recklessly in driving his vehicle while severelyintoxicated (see [*11]Penal Law § 15.05 [3]),which led to the tragic death of an innocent person (see Penal Law § 125.15 [3])."The Feingold standard is a stringent one. There is no such thing as constructivedepravity. The analysis is wholly subjective. The mental state is actual" (Ryan J. Mahoney, Note,Depraved Indifference Murder in the Context of DWI Homicides in New York, 82 St.John's L Rev 1537, 1576 [2008]). In short, the People's evidence established that the defendantacted recklessly, but not that he acted with depraved indifference.
For the reasons set forth above, I would modify the judgment by reducing the defendant'sconviction of second degree murder to manslaughter in the second degree (see Penal Law§ 125.15 [1]), a lesser-included offense of murder in the second degree upon which thejury was instructed, vacate the sentence imposed on that count, and remit the matter to theCounty Court, Nassau County, for resentencing on that count.