People v. Suarez , 6 N.Y.3d 202 ( 2005 )

OPINION OF THE COURT

Per Curiam.

These two appeals call upon the Court, once again, to differentiate depraved indifference murder from other categories of homicide. We begin with the facts.

People v Suarez. On February 22, 2000, in their Bronx apartment, defendant Santos Suarez stabbed his girlfriend, Jovanna Gonzalez, three times—once in the throat, once in the chest and once in the abdomen. Suarez fled without summoning assistance, and Gonzalez eventually bled to death.

When Suarez was arrested six days later in Rhode Island, he told police that he had slapped Gonzalez in the face during an argument, and that she had then lunged at him with a knife, scratching him in the chest. Suarez wrested the knife away and, “outraged” that Gonzalez had called for her son, lunged back at her. According to Suarez’s account, when he pulled back, he saw that Gonzalez was bleeding from the neck. He claimed, however, that he could not remember what happened next. Suarez was indicted for intentional murder, depraved indifference murder, intentional manslaughter and criminal possession of a weapon in the fourth degree. At his trial, he testified that he never intended to kill Gonzalez. Charged on the defense of justification and the affirmative defense of extreme emotional disturbance, the jury acquitted Suarez of intentional murder but convicted him of depraved indifference murder. The Appellate Division affirmed defendant’s conviction, holding that the evidence was legally sufficient to establish guilt of depraved indifference murder.

People v McPherson. On February 12, 2000, defendant Trisha McPherson went to the Brooklyn home of Kirk Wright, her former boyfriend and the father of her child. According to McPherson, after she and Wright argued over child support, Wright pushed her. When Wright then raised his hand as if to hit her, McPherson unzipped her purse, pulled out a knife, opened the knife and swung it at Wright, stabbing him once in the chest. When she saw that Wright was bleeding, McPherson immediately called 911 and requested an ambulance. Before the ambulance arrived, McPherson left the scene. Wright was transported to a hospital, where he bled to death from the stab wound. At her nonjury trial for depraved indifference murder, first-degree manslaughter and fourth-degree weapon possession, McPherson testified that she had been a long-suffering victim of domestic violence at the hands of Wright, and that she was acting in self-defense when she killed him. The court, however, rejected her justification defense and found her guilty of depraved indifference murder. Again the Appellate Division affirmed defendant’s conviction, holding that the evidence was legally sufficient to establish guilt of depraved indifference murder.

In each case—McPherson by a unanimous court, Suarez by a six-Judge majority—we conclude that there was no depraved indifference murder, and therefore reverse both convictions.

The Statutory Categories of Homicide

With the adoption of the revised Penal Law in 1965, the Legislature codified five basic categories of homicide, which have remained essentially unchanged since that time: intentional murder in the second degree (Penal Law § 125.25 [l]),¹ depraved indifference murder in the second degree (Penal Law § 125.25 [2]), intentional manslaughter in the first degree (Penal Law § 125.20 [1]), reckless manslaughter in the second degree (Penal Law § 125.15 [1]) and criminally negligent homicide (Penal Law § 125.10). Although the culpable acts in each case culminate in the same tragic result—the death of another— these crimes, each necessarily meant to proscribe different conduct, are distinguished by the level of blameworthiness attributable to the actor who commits them. Intentional murder and depraved indifference murder are equivalent in that both are classified at the highest grade and carry the same penalty; other categories of homicide, lesser in grade, are punished less severely. In so classifying the range of unlawful killings condemned by the criminal law, the Legislature has enacted a statutory system in which each category of homicide is defined uniquely and distinctly from every other, thus ensuring that a killer’s punishment is commensurate with the degree of criminal culpability established by the Penal Law.

What precisely distinguishes depraved indifference murder from other homicides has of late generated significant discussion,² as the number of indictments for depraved indifference murder—often charged in conjunction with intentional murder—has increased dramatically. Whether because jurors conclude that anyone who would intentionally take a life is depraved, or because they mistakenly believe that depraved indifference murder is a lesser offense than intentional murder and are reluctant to convict of the “most serious” charge, the availability of a depraved indifference murder count has led juries to convict of that charge even though the evidence did not support it (see e.g. People v Hafeez, 100 NY2d 253 [2003]; People v Gonzalez, 1 NY3d 464 [2004]; People v Payne, 3 NY3d 266 [2004]; see also Policano v Herbert, 430 F3d 82 [2d Cir 2005]).

The proliferation of the use of depraved indifference murder as a fallback theory under which to charge intentional killers reflects a fundamental misunderstanding of the depraved indifference murder statute. “[D]epraved indifference murder may not be properly charged in the overwhelming majority of homicides that are prosecuted in New York” (Payne, 3 NY3d at 270). Rather, because the statute requires “circumstances evincing a depraved indifference to human life” (Penal Law § 125.25 [2]), depraved indifference murder properly applies only to a small, and finite, category of cases where the conduct is at least as morally reprehensible as intentional murder. The cases now before us, two additional examples of the misapplication of the depraved indifference murder statute, compel us—for now and for the future—to revisit what is unique and distinctive about that crime as defined by the Legislature. The purpose here is not to take anything away from juries {see concurring/dissenting op at 227)—a valued and essential element of our justice system—but rather to provide the guidance that will enable prosecutors, juries, trial courts and reviewing courts to function without risk of reversal.

Distinction from Intentional Murder

According to Penal Law § 125.25 (2), a person commits depraved indifference murder when “[ujnder circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.”

That taking the life of another can itself, in a sense, be considered a “depraved” act does not, however, turn every killing into depraved indifference murder as proscribed by the Penal Law. We thus begin by once again underscoring that the “use of a weapon can never result in depraved indifference murder when . . . there is a manifest intent to kill” (Payne, 3 NY3d at 271 [2004] [point-blank shooting insufficient to establish depraved indifference murder]). That is so because “[i]ndifference to the victim’s life . . . contrasts with the intent to take it” (id. at 270). The People concede this proposition, but seek to distinguish Suarez from Payne, and from Gonzalez (1 NY3d 464 [2004] [10 shots fired at close range]), because in those cases the defendant used a gun, whereas here he used a knife. Thus, despite Payne’s plain statement that “a one-on-one shooting or knifing (or similar killing) can almost never qualify as depraved indifference murder” (3 NY3d at 272 [emphasis added]), the People maintain that a jury could reasonably have concluded that Suarez’s infliction of stab wounds to the throat, chest and abdomen of his victim reflected not an intent to kill but merely an intent to seriously injure her.

If the prosecution meant by this nothing more than that the evidence would have supported defendant’s conviction for intentional murder—despite the jury’s acquittal of that charge—as well as his conviction for intentional manslaughter in the first degree, we would agree. However, the People contend further that the evidence here also established depraved indifference murder, on the theory that Suarez’s actions in stabbing the victim created a grave risk of her death—a risk that he consciously disregarded when he failed to seek medical assistance for the injuries he intentionally inflicted and instead left her there to die.

“That is not the law. If it were, every homicide, particularly intentional ones, would be converted into depraved indifference murder” (Payne, 3 NY3d at 270; see also People v Hafeez, 100 NY2d 253, 259 [2003] [where defendant’s conscious objective was to “intentionally injur(e)” the victim, there was “no valid line of reasoning that could support a jury’s conclusion that defendant possessed the mental culpability required for depraved indifference murder”]).

Indeed, the flaw in the People’s argument is perhaps best demonstrated by comparing Suarez with McPherson. In Suarez, the People maintain that depraved indifference is established by the defendant’s intentional infliction of a mortal wound, followed by his flight from the scene of the killing. Because the defendant left the bleeding victim still alive without “finishing her off,” we are told, he must not have intended her death (which in turn exempts the case from the “manifest intent to kill” rule of Payne). But since he did nothing to save her, his actions, we are further told, reflected a depraved indifference to her life.³ In McPherson, by contrast, we are told that the defendant’s conduct in calling for an ambulance after discovering that her victim had been wounded in itself reflected depraved indifference. For, the argument goes, her very actions in summoning assistance show that she did not intend for the victim to die. That being so, her crime (the People assert) must have been one of indifference, not of intentionality; and since the risk of death created by a chest wound is a grave one, the depraved indifference murder statute is satisfied.

When the People can make, and courts can accept, arguments in which both the rendering of assistance and the failure to render assistance serve to establish depraved indifference, there must be a fundamental misapprehension of the concept of the crime.

The People’s argument is flawed on two grounds. First, a killing (whether intentional or unintentional) is not transformed into depraved indifference murder simply because the killer does not summon aid for the victim. Otherwise, homicides would be routinely and improperly converted into depraved indifference murders whenever—as is often the case—the killer leaves the scene. Even more obviously, a killing does not become a depraved indifference murder merely because the killer summons aid and thus reveals an intent that the victim not die. Surely, a killer does not commit depraved indifference murder just because he or she wants the victim to live. Second, and irrespective of what the actor does or does not do after inflicting the fatal injury, depraved indifference murder is not made out unless the core statutory requirement of depraved indifference is established.

“Depraved indifference murder does not mean an extremely, even heinously, intentional killing. . . .

“When a defendant’s conscious objective is to cause death, the depravity of the circumstances under which the intentional homicide is committed is simply irrelevant. Nor can the wanton disregard for human life inherent in every intentional homicide convert such a killing”

into depraved indifference murder (Gonzalez, 1 NY3d at 468).

Distinction from Intentional Manslaughter

Historically, depraved indifference murder had no application at all to one-on-one killings (see generally Bernard E. Gegan, A Case of Depraved Mind Murder, 49 St John’s L Rev 417 [1974]). Accordingly, in Darry v People (10 NY 120 [1854]), this Court held that a conviction for “depraved mind”⁴ murder required conduct that endangered many people indiscriminately, reflecting cases in which the defendant did not wish to kill or injure any particular individual, but had no care for whether the life of any particular person was lost or not.

Since the enactment of the revised Penal Law, however, we have recognized that in rare circumstances, depraved indifference murder can also be found in certain unintentional killings involving only a single individual. These limited cases are those in which—although the intent to kill is absent—the defendant’s utter depravity in causing the victim’s death warrants punishment in excess of that available for manslaughter. Such cases will arise only when the acts of the defendant are “marked by uncommon brutality—coupled not with an intent to kill . . . but with depraved indifference to the victim’s plight” (Payne, 3 NY3d at 271). To constitute depraved indifference, the defendant’s

“conduct must be ‘ “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 warrant the same criminal liability as that which the law imposes upon a person who intentionally causes the death of another” ’ ” (People v Russell, 91 NY2d 280, 287-288 [1998], quoting People v Fenner, 61 NY2d 971, 973 [1984]).

The vast majority of killings simply do not meet this standard. They are suitably punished by statutes defining intentional murder or manslaughter in the first or second degree or criminally negligent homicide.

Depraved indifference murder is not a lesser degree of intentional murder.^{5 6} Moreover, someone who intends to cause serious physical injury does not commit depraved indifference murder because the intended victim dies. By definition, “[s]erious physical injury” includes injury “which creates a substantial risk of death, or which causes death” (Penal Law § 10.00 [10]). Thus, one who acts with the conscious intent to cause serious injury, and who succeeds in doing so, is guilty only of manslaughter in the first degree. Otherwise, every intentional manslaughter would also establish depraved indifference murder—a result plainly at odds with the discrete classifications set forth in the statute. Since a defendant who intends to injure or kill a particular person cannot generally be said to be “indifferent”— depravedly or otherwise—to the fate of that person, we underscore what we said in Payne: “a one-on-one shooting or knifing (or similar killing) can almost never qualify as depraved indifference murder” (3 NY3d at 272).⁶

A defendant may be convicted of depraved indifference murder when but a single person is endangered in only a few rare circumstances. Two fact patterns have recurred over the past four decades of experience under the revised Penal Law. First, when the defendant intends neither to seriously injure, nor to kill, but nevertheless abandons a helpless and vulnerable victim in circumstances where the victim is highly likely to die, the defendant’s utter callousness to the victim’s mortal plight— arising from a situation created by the defendant—properly establishes depraved indifference murder. Thus, in People v Kibbe (35 NY2d 407 [1974]), the defendants were properly convicted of depraved indifference murder after they robbed an intoxicated victim and forced him out of a car on the side of a dark, remote, snowy road, partially dressed and without shoes in subfreezing temperatures, where he was struck by a passing truck and killed. Similarly, in People v Mills (1 NY3d 269 [2003]), the defendant, without intent to harm or kill his victim, pushed a young boy into the water, watched him submerge without resurfacing (either because the boy had accidentally struck his head or because of an epileptic seizure), falsely informed his friends in response to their cries to help the victim that he was in fact swimming away, and abandoned the drowning boy to die.

Second, although we have reversed depraved indifference murder convictions in most cases involving isolated attacks, we have held that the crime is nevertheless established when a defendant—acting with a conscious objective not to kill but to harm—engages in torture or a brutal, prolonged and ultimately fatal course of conduct against a particularly vulnerable victim. When a defendant’s actions serve to intensify or prolong a victim’s suffering, they bespeak a level of cruelty that establishes the depravity mandated by statute. Thus, in People v Poplis (30 NY2d 85 [1972]), the defendant committed depraved indifference murder when, albeit without any intent to kill, he caused the death of a 3½-year-old infant as a result of continually beating the child over a period of five days (see also People v Best, 85 NY2d 826 [1995], affg 202 AD2d 1015 [4th Dept 1994] [defendant’s repeated severe beatings of her nine-year-old son caused large open wounds resulting in blood poisoning and ultimately death by asphyxiation; depraved indifference murder established since defendant continued beatings though aware of child’s condition]).

Both of these categories of cases reflect wanton cruelty, brutality or callousness directed against a particularly vulnerable victim, combined with utter indifference to the life or safety of the helpless target of the perpetrator’s inexcusable acts. We have also upheld convictions for depraved indifference murder in a few other extraordinary cases involving conduct that endangered only one person, where the evidence showed not just recklessness, but depraved indifference to human life (see e.g. People v Roe, 74 NY2d 20 [1989] [defendant fired at pointblank range without knowing whether the bullet was a “live” or “dummy” round]). Where comparable facts are not shown, however, a jury is foreclosed, as a matter of law, from considering a depraved indifference murder charge whenever death is the result of a one-on-one confrontation.⁷

Distinction from Reckless Manslaughter

Reckless homicide cannot be elevated into depraved indifference murder merely because the actions of the defendant created a risk of death, however grave or substantial that risk may have been. Otherwise, manslaughter in the second degree would routinely and automatically become depraved indifference murder inasmuch as the victim (who was, after all, killed) was necessarily exposed to a grave or substantial risk of death. The critical statutory language that separates second-degree manslaughter from depraved indifference murder is the defendant’s underlying depraved indifference. ‘‘[Circumstances evincing a depraved indifference to human life” are not established by recklessness coupled only with actions that carry even an inevitable risk of death.

We therefore make clear that depraved indifference is best understood as an utter disregard for the value of human life—a willingness to act not because one intends harm, but because one simply doesn’t care whether grievous harm results or not. Reflecting wickedness, evil or inhumanity, as manifested by brutal, heinous and despicable acts, depraved indifference 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 as culpable as one whose conscious objective is to kill (Russell, 91 NY2d at 287 [internal quotation marks omitted]).⁸ Quintessential examples are firing into a crowd (see e.g. People v Jernatowski, 238 NY 188 [1924]); driving an automobile along a crowded sidewalk at high speed (see People v Gomez, 65 NY2d 9 [1985]); 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 a train is about to pass over it and dropping stones from an overpass onto a busy highway.

Oftentimes it will not be easy to determine whether a defendant’s conscious objective was to kill or merely to injure a victim. But those are the hard choices to be weighed by the trier of fact. Depraved indifference murder was never meant as a fallback crime enabling courts and juries to avoid making these difficult decisions. We therefore make clear that the statutory provision that a defendant act “[u]nder circumstances evincing a depraved indifference to human life” constitutes an additional requirement of the crime—beyond mere recklessness and risk— which in turn comprises both depravity and indifference, and that a jury considering a charge of depraved indifference murder should be so instructed (see People v Register, 60 NY2d 270, 276 [1983] [depraved indifference murder statute “requires in addition not only that the conduct which results in death present a grave risk of death but that it also occur ‘(u)nder circumstances evincing a depraved indifference to human life’ ”]).

We depart slightly from the Register formulation, however, in that we make clear that the additional requirement of depraved indifference has meaning independent of the gravity of the risk. AlS the present cases illustrate, to focus, as the dissent does, on only the degree of risk presented by a defendant’s reckless actions gives insufficient guidance to prosecutors, courts and juries struggling to distinguish between these very different crimes. For with the critical inquiry thus cast, it becomes difficult for trial and appellate courts to determine as a matter of law whether given conduct has established a very substantial or merely substantial risk of death, particularly because this determination must, by definition, always be made with the hindsight that the endangered victim did in fact die. That being so, it is hard for a court exercising meaningful review ever to deny that the jury could reasonably have concluded that the defendant’s conduct must have created a very substantial (i.e., grave) risk of death, since it actually succeeded in causing death.

Although the dissent proclaims its faith in the ability of jurors to make the fine distinction between “a grave, transcendent risk of death justifying a conviction of second-degree murder or a substantial risk of death warranting a manslaughter conviction” (dissenting/concurring op at 227), it also concludes that there was no rational view of the evidence to support the conclusion that McPherson demonstrated a depraved indifference to the victim’s life. But of course, the trial judge found otherwise, and was affirmed by the Appellate Division.

When depraved indifference murder is properly understood, “twin-count” indictments—charging both intentional homicide and depraved indifference murder—should be rare. Twin-count submissions to a jury, even rarer. For by the time the proof has been presented, it should be obvious in most cases whether or not the evidence establishes “an intentional [killing] or no other” (People v Wall, 29 NY2d 863, 864 [1971]). Thus, where twin-count indictments are lodged, trial courts should presume “that the defendant’s conduct falls within only one category of murder and, unless compelling evidence is presented to the contrary, dismiss the count that is least appropriate to the facts” (Abramovsky and Edelstein, 55 Syracuse L Rev at 491).

In sum, whether a small, finite or rare category, depraved indifference murder should not be routinely charged to a jury. Focus on the three statutory factors that distinguish depraved indifference murder—“circumstances evincing a depraved indifference to human life,” recklessness and “a grave risk of death to another person”—should again make clear that the statute properly applies only to the unusual case.

Application of the Law to the Facts

In Suarez, defendant’s acts in stabbing his victim in the throat, chest and abdomen did not, as a matter of law, constitute depraved indifference murder. Whether he intended to kill her or merely to cause her serious injury—and either of these findings, supported by sufficient evidence, might have been properly made by the jury—defendant’s actions in no way reflected a depraved indifference to her fate.⁹ In McPherson, defendant’s conduct may have reflected recklessness but did not fall within the small, and finite, category of cases evidencing utter depravity, uncommon brutality and inhuman cruelty required for depraved indifference murder. We reject defendant McPherson’s further contention that she was denied the effective assistance of counsel at her trial.

Remittitur

In their briefs to this Court, the parties focused their arguments on the merits, and not on the question of remedy in the event of a reversal. Inasmuch as the Appellate Division, in affirming in each case, had no occasion to address the significant legal arguments bearing on the appropriate remedy, we remit to the Appellate Division for full briefing and consideration and for that Court to exercise its corrective action powers under CPL 470.20.

Accordingly, in each case, the order of the Appellate Division affirming the judgment of conviction and sentence should be reversed and the case remitted to that Court for further proceedings in accordance with this opinion. Additionally, in McPherson, the order of the Appellate Division affirming the denial of defendant’s CPL 440.10 motion should be affirmed.

1 . Certain enumerated aggravating factors elevate intentional murder in the second degree to murder in the first degree (Penal Law § 125.27 [1]).

2 . See e.g. Abraham Abramovsky and Jonathan I. Edelstein, Depraved Indifference Murder Prosecutions in New York: Time for Substantive and Procedural Clarification, 55 Syracuse L Rev 455 (2005); Paul Shechtman, Outside Counsel, The Meaning of Depraved-Indifference Murder: New Legislation?, NYU, Apr. 4, 2005, at 4, col 4; Brian E Allen, A Step in the Right Direction: People v. Hafeez, Stopping the Expansion of Depraved Indifference Murder in New York State, 18 St John’s J Legal Comment 875 (2004); Peter Dunne, Is There Life Left in Depraved Indifference Murder?, 2 NY Grim L Newsl [No. 4] 5 [NY St Bar Assn, Fall 2004]; see also Bernard E. Gegan, More Cases of Depraved Mind Murder: The Problem of Mens Rea, 64 St John’s L Rev 429 (1990).

3 . Thus, under the People’s theory, a defendant who plainly intended to kill the victim, and who succeeded, may he prosecuted only for intentional murder. But an inept defendant, who commits precisely the same acts with the intent to kill, but who fails to kill the victim right away and instead flees the scene of the attempted intentional homicide, will—despite having engaged in identical conduct with an identical mental state—have committed depraved indifference murder when the victim later dies. We cannot agree with this proposition. It is the rare killer indeed who, after inflicting a mortal wound intended at a minimum to cause serious physical injury, lingers at the scene of the crime or summons aid. “The People’s tautology, if accepted, would improperly convert every intentional homicide” that does not succeed in bringing about the victim’s immediate death into depraved indifference murder (Gonzalez, 1 NY3d at 468).

4 . We note that the statute no longer refers to depraved “mind” murder. Continuing to describe the crime in those terms improperly detracts from the current statute’s requirement of indifference.

5 . It was therefore misleading for the prosecutor in Suarez to request in summation that the jury “find [defendant] guilty of Intentional Murder, or at the very least, that he acted with such depraved indifference that he disregarded her human life” (emphasis added).

6 . Of course, a one-on-one dispute will not always reflect a manifest intent to kill or injure. Rather, we make clear only that whether the infliction of serious or fatal injury was intended or not, such a confrontation can almost never support a finding of depraved indifference. It is up to the jury to decide in a particular case whether the defendant acted intentionally, or recklessly, or negligently (or not at all). Indeed, in McPherson—a one-on-one confrontation—the evidence was certainly sufficient to support a finding of reckless manslaughter, although not of depraved indifference murder. Nor do we make any absolute pronouncement “that a person who stabs someone with a knife cannot act with ‘a depraved indifference to human life’ ” (concurring/ dissenting op at 219).

7 . Moreover, the mere presence of third persons at the scene of a killing does not convert an intentional homicide directed at a particular victim into depraved indifference murder unless others are actually endangered. Thus, in Gonzalez, although the defendant, after shooting the victim, “waved the gun at the only eyewitness—the barber—warned him not to say anything and walked out the door” (1 NY3d at 466), the evidence was legally insufficient to establish depraved indifference murder despite the presence of the barber in the shop at the time of the shooting (see also People v Sanchez, 98 NY2d 373 [2002] [depraved indifference murder conviction upheld because “others were endangered” (Payne, 3 NY3d at 272)]).

8 . By contrast, in authorizing lesser punishment for the crime of manslaughter in the first degree, the Legislature specifically determined that the intentional infliction of serious injury resulting in death is not so blameworthy “as to warrant the same criminal liability as that which the law imposes upon a person who intentionally causes the death of another” (id. at 287-288 [internal quotation marks and citations omitted]).

9 . Nor could Suarez’s claims that he was acting in self-defense or that he could not remember what happened when he stabbed his girlfriend support his conviction for depraved indifference murder. Depraved indifference murder entails depraved indifference, not a mere loss of memory or actions performed without conscious focus (see also Gonzalez, 1 NY3d at 469 [“In arguing that the jury might have concluded that defendant acted out of fear and anger, and therefore without intent, the People confuse recklessness with extreme emotional disturbance. A defendant who commits murder because of uncontrollable emotion may be entitled to raise an affirmative defense to murder, but the extreme emotional disturbance defense does not negate intent. The influence of an extreme emotional disturbance explains the defendant’s intentional action, but does not make the action any less intentional. Indeed, when there is a finding that the defendant acted under extreme emotional disturbance, the offense is reduced from intentional murder in the second degree to intentional—not reckless—manslaughter in the first degree” (internal quotation marks and citations omitted)]).