Lead Opinion
Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered May 10, 2004, upon a verdict convicting defendant of the crime of murder in the second degree.
Defendant was indicted for both intentional and depraved indifference murder as a result of an incident in the early morning hours of December 27, 2002 wherein he shot and killed Pat Johnson (hereinafter the victim). Following a jury trial, he was acquitted of intentional murder but found guilty of depravеd indifference murder. Sentenced to a prison term of 25 years to life, he now appeals. We affirm.
There can be no doubt that “[w]hat precisely distinguishes depraved indifference murder from other homicides has of late generated significant discussion” (People v Suarez,
Upon our review of the trial evidence, in conjunction with the definition of depraved indifference as charged to the jury,
The evidence at trial established that defendant
The distance between defendant, who was a novice user of the subject rifle, and the people across the street was hardly close. All of the witnesses testified that the “shooter” (see n 3, supra) was standing inside the hallway of a residence on the opposite side of the street. The victim, his girlfriend, their male companion and two of defendant’s own friends were located across thе street from this residence near the victim’s parked car. Another of defendant’s friends was also in the immediate vicinity. Moreover, it was dark outside, the street was dimly lit and the weather was described as “a blizzard.” In our view, defendant’s conduct in firing from a doorway across the street in a direction where several people were present on a dark, snowy night established his indifference to the grave risk of death posed by his aсtions.
While the jury heard testimony from one witness, who acknowledged that he had changed his statement to police a couple of times and who was himself threatened with being charged with murder, that defendant allegedly told him that he put the scope on the victim’s chest that morning, they also heard evidence from the victim’s girlfriend that the victim was pacing back and forth on the street at the time the shot was fired. The jury further heard testimony that, just minutes before the shooting, defendant refused to participate in his companions’ decision to steal the victim’s car because he and the victim had been childhood friends. Thus, even though defendant would not participate in the relatively petty offense of stealing the victim’s car, defendant asserts that the only conclusion to be drawn from the evidence is that he acted only with intent to kill him just minutes later (compare People v Hafeez,
As a final matter, we note that the dissent places some reliance on comments made during summations when analyzing whether this verdict is against the weight of the evidence. In our view, such comments are irrelevant to the question of whether the jury’s verdict is against the weight of the evidence inasmuch as comments made in summation are simply not evidence (see generally People v Roche,
Defendant’s remaining contentions, including the claim that his sentence was harsh and excessive, have been reviewed and determined to be unpersuasive.
Peters and Kane, JJ., concur.
Notes
. While defendant argues that the evidence was legally insufficient to support his conviction of depraved indifference murder, his general motions to dismiss upon the close of the People’s case and again at the close of all proof failed to properly preserve this specific claim (see People v Gray,
. In conducting a weight of the evidence analysis, this Court “ ‘is constrained to weigh the evidence in light of the elements of the crime as charged without objection by defendant’ ” (People v Cooper,
. Notably, not one witness identified defendant as the person who fired the shot that morning and no witness, including the victim’s friend and girlfriend who were present when the shot was fired, еven knew that he was fatally injured until the next morning. Defendant testified on his own behalf and denied that he was the shooter. The jury’s acquittal on the intentional murder count and guilty verdict on the depraved indifference count signifies its conclusion that the evidence nevertheless established defendant as the shooter that morning but left a reasonable doubt as to whether he acted with the intent to kill the victim.
. The victim ran away and was later disсovered lying face down in a snowbank, moving and attempting to speak. He ultimately died from massive blood loss. The pathologist who conducted the autopsy testified that the victim’s injury was of the type that could be treated and was not necessarily fatal.
Dissenting Opinion
(dissenting). Because the majority’s decision is premised solely on People v Sanchez (
A person is guilty of depraved indifference murder when “[u]nder circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, аnd thereby causes the death of another person” (Penal Law § 125.25 [2]). The Court of Appeals has underscored that “ ‘[d]epraved indifference murder may not be properly charged in the overwhelming majority of homicides that are prosecuted in New York’ ” (People v Suarez, supra at 207, quoting People v Payne, supra at 270). As particularly relevant here, the Court has stated that “[t]he use of a weapon can never result in depraved indifference murder when, as here, there is a manifest intent to kill. . . . [I]f a defendant fatally shoots the intended victim once, it could be murder, manslaughter in the first or second degree or criminal negligence (or self-defense), but not depraved indifference murder” (People v Payne, supra at 271-272; see People v Suarez, supra at 208). A given result cannot be simultaneously both intended and unintended (see People v Gallagher,
Further, the Court of Appeals has most recently clarified that beyond a grave risk of death and recklessness, “the statutory provision that a defendant act ‘[u]nder circumstances evincing a depraved indifference to human life’ constitutes an additional requirement of the crime” (People v Suarez, supra at 214). The Court explained that this additional element “reflect[s] 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” (id. at 213). This additional element is said to “[r]eflect[ ] wickedness, evil or inhumanity, as manifested by brutal, heinous and despicable acts” (id. at 214; but see People v Sanchez, supra at 379-383; People v Roe,
Here, there is no proof of either recklessness or depravity—
With these principles in mind, the evidence that, in our view, compels a reversal is set forth as follows. At a party for Samanda Shaw on thе night of the shooting, James Taylor observed defendant holding a carbine-type rifle with a scope on it. Later that evening, defendant and Shaw, accompanied by two friends known as JT and MG, went to a pizza shop. Rather than wait for a cab when they wanted to leave, the group decided to steal two vehicles. Shaw, JT and MG left in a Jeep Cherokee that belonged to the victim while defendant took a car owned by Onеil Smith. Once the group returned to Shaw’s apartment, Shaw, MG and JT remained outside, while defendant first went inside and then waited for the victim on the steps of the building.
After they were informed that their vehicles had been stolen, Smith and the victim borrowed a car, met the victim’s girlfriend, Laquisha Wright, and drove to Shaw’s apartment. When they observed Shaw and MG getting out of the victim’s Jeep, the victim punched MG in the face, knocking him to the ground. Witnesses then heard a gunshot fired from the doorway of Shaw’s apartment and, immediately thereafter, saw defendant exiting the darkened doorway of the apartment. The victim fled and was ultimately taken to the emergency room, where he died from massive blood loss due to a gunshot wound of the right lung. Once the group was back in the apartment, defendant told
Nevertheless, at trial, defendant presented a defense of misidentification. He maintained that when the fatal shot was fired, he was assisting JT in carrying MG into Shaw’s apartment and that he heard a gunshot come from behind him but did not know who fired the shot. Thereafter, in summation, defense counsel asserted to the jury: “[I]n this case[,] you either pick the first count of the indictment [charging intеntional murder], in fairness, or none at all. ... If someone takes a rifle with a scope and aims it at another human being and shoots them in the chest, you can bet your bottom dollar they are trying to kill him. So your job in this case, ladies and gentlemen, is really, simply stated but difficult to determine, was [defendant] the shooter?” In response, the People agreed with defense counsel, stating that “[w]hoever pointed that gun, whoever put that dot on thаt chest and squeezed that trigger intended to kill [the victim].” Nevertheless, the People urged that “in this case you should find that this defendant . . . intentionally caused the death of [the victim]. And if you don’t find that because you don’t know what was in his head, you should find that it was depraved indifference murder and he acted depraved.”
On appeal and contrary to their argument before the jury that it should find depraved indifference murder as a fallback to intеntional murder, the People argue—and the majority agrees— that the evidence at trial supports a finding of recklessness. Specifically, the majority concludes that both recklessness and depravity can be inferred from the evidence indicating that defendant fired a single shot from a darkened entryway in a building across a city street during bad weather and with other bystanders—Wright, Shaw, MG, Smith and JT—present. From these facts, the majority finds an instаntaneous, impulsive shooting designed to disable, wound or frighten the victim, rather than to kill him (see People v Sanchez,
The claims that the shooting was impulsive and spontaneous are contradicted by defendant’s admissions that when he ar
In short, there is no evidence suggesting that the shooting was anything other than intentional and designed to kill. At trial, defendant relied only on a misidentification defense, which the jury rejected and the majority now necessarily concedes was meritless in concluding that defendant committed depraved indifference murder (see People v Gonzalez, supra at 469; Policano v Herbert, supra at 89 n 3). We do not agree with the majority that proof suggesting that others were endangered can supply evidence of the element of recklessness here. While the majority relies heavily on the presence of bystanders at the time of the shooting as proof of defendant’s indifference to the grave risk of death posed by his actions, defendant’s use of the red-dot scope to aim the bullet directly at the victim’s chest negates any suggestion that he acted with indifference, as opposed to intent to kill. The facts of this case cannot be equated to the circumstances where “a defendant—unconcerned with the consequences— . . . fires into a crowd [or] drives an automobile down a crowded sidewalk at high speed” (People v Gonzalez, supra at
Accordingly, we conclude that, as acknowledged by the People at trial, the record evidence indicates that defendant, the person who “pointed that gun, who[ ] put that dot on that chest and squeezed that trigger[,] intended to kill [the victim].” Absent evidence establishing the necessary element of recklessness, the People’s further argument to the jury that if it did not find intеntional murder “because you don’t know what was in [defendant’s] head, you should find that it was depraved indifference murder,” was both misleading and specious.
Moreover, even if the evidence supported a finding of recklessness here, the People failed to establish the additional element of depravity (uncommon brutality and inhuman cruelty) necessary to support a finding of depraved indifference murder. Defendant’s actions—waiting for the victim and shooting him in the chest after the victim punched a friend—do not reflect the wantonness or inhumanity necessary to establish the element of depravity as charged to the jury (People v Suarez,
Finally, we cannot overlook defense counsel’s error in permitting the “twin counts” of intentional homicide and depraved indifference murder to be submitted to the jury without objection. It has long been established that one cannot simultaneously act intentionally and recklessly and that recklessness is an element of depraved indifference murder (see e.g. People v Gallagher,
For the reasons stated above and on constraint of People v Payne (supra) and People v Suarez (supra), we cannot subscribe to the majority’s position.
Crew III, J., concurs. Ordered that the judgment is affirmed.
. In any event, the record does not support an inference that defendant endangered others by firing the gun into a crowded street. The only bystanders were Shaw, Wright, Smith, JT and MG. There is conflicting testimony regarding whether Shaw or Wright remained anywhere near the victim and his parked car; Smith had walked up the street; and JT was dragging MG up the stairs of Shaw’s apartment building at the time of the shooting.
. We note that “statements in a summation are not evidence” (People v Roche,