The People &c.,
The People &c.,
2005 NY Int. 164
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
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
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 ),
indifference murder in the second degree (Penal Law § 125.25
What precisely distinguishes depraved indifference
murder from other homicides has of late generated significant
as the number of indictments for depraved
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 ), 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,
Distinction from Intentional Murder
According to Penal Law § 125.25 (2), a person commits 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, 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  [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
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  [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
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.
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
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 ). Accordingly, in Darry v People (10 NY 120 ), this Court held that a conviction for "depraved mind" 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 --
Depraved indifference murder is not a lesser degree of
Moreover, someone who intends to cause
serious physical injury does not commit depraved indifference
murder because the intended victim dies. By definition, "serious
physical injury" includes injury "which creates a substantial
risk of death, or which causes death" (Penal Law § 10.00 ).
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
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 2 85 ), the defendant committed depraved
indifference murder when, albeit without any intent to kill, he
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  [defendant fired at point-blank
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. 
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. "[C]ircumstances 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
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 --
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. As 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 op at 14), 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 ). 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 & Edelstein,
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
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.
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
In their briefs to this Court, both parties focused their arguments entirely 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.
People v Santos Suarez - No. 178 People v Trisha McPherson - No. 179 G. B. SMITH, J., ROSENBLATT, J. and R. S. SMITH, J. (concurring):
We are full participants in the Court's per curiam decision, but write separately to add some views of our own.
The Court's earlier decisions in People v Register (, 60 NY2d 270 ) and in People v Sanchez (, 98 NY2d 373 2002]), which was based in significant part on Register, gave too expansive a definition to depraved indifference murder. The Court has properly limited the force of those decisions in People v Hafeez (, 100 NY2d 253 ), People v Gonzalez (1 NY3d 464 ) and People v Payne (3 NY3d 266 ), and has limited them even further today. We would take a step beyond the per curiam opinion and say what the Court stops short of saying: that Register and Sanchez should be explicitly overruled.
Notwithstanding this difference, we welcome the Court's
return to a more restrictive, and we believe more sound,
interpretation of the depraved indifference murder statute. But
there is, as all members of this Court are painfully aware, a
price to be paid for this needed revision in the Court's
In overturning convictions in such cases, the Court, in
our view, performs an unpleasant but necessary duty, and by doing
so will make future homicide prosecutions more sustainable,
increasing the likelihood that defendants who are proven beyond a
reasonable doubt to have committed intentional murder will be
properly held to account for that crime. We expect, or at least
hope, that the rule embodied in this and our other recent
decisions will be applied prospectively, and that any impact on
already completed prosecutions can be avoided. Defendants who
committed vicious crimes but who may have been charged and
convicted under the wrong section of the statute are not
attractive candidates for collateral relief after their
convictions have become final.
A defendant who commits intentional murder should be convicted and punished for that crime, not for a crime that he or she did not commit and that a jury may mistakenly believe is less serious. Where intentional murder is not made out, the lesser degrees of homicide, including first and second degree manslaughter, can fully serve the function they served for decades before the relatively recent, seismic expansion in depraved indifference murder prosecutions. Continuing to countenance the routine use of depraved indifference murder charges, as the dissent would have us do, will ultimately cause more trouble than the course the Court has taken today.
Further, and contrary to the dissent, the Court does
not hold that a person who stabs another with a knife may never
be guilty of depraved indifference murder. It is better to say
"almost never," as the Court does. Though we have held that a
point-blank shooting may almost never qualify as depraved
indifference murder, we have recognized that a variation on
Russian roulette (a point-blank shooting) may be an exception
( see People v Roe, , 74 NY2d 20 ). Similarly, if one person
We appreciate our dissenting colleague's desire to affirm in Suarez and reverse in McPherson. But, as the per curiam opinion demonstrates, to reach that result while applying Register and Sanchez requires overlooking the fact that both defendants created at least a grave risk of death by fatally stabbing their victims in the chest. It may well be that justice would call for convicting Suarez of murder and McPherson of manslaughter, but the degree of risk created is not a sufficient basis for distinguishing between cases like these. The distinction can be properly made only by requiring that the prosecution, to obtain a murder conviction, must prove intent to kill or, in the rare cases where it is present, depraved indifference to human life. That is what the Legislature plainly intended, and we welcome the Court's decision today to adhere to that original intention.
People v Santos Suarez - No. 178 People v Trisha McPherson - No. 179 READ, J. (concurring):
On constraint of our decision in People v Payne (, 3 NY2d 266 ), I concur with the result in People v Suarez. On
constraint of our decisions in People v Hafeez (, 100 NY2d 253
) and Payne, I concur with the result in People v
McPherson. For all the reasons expressed by Judge Graffeo, I
People v Santos Suarez - No. 178 People v Trisha McPherson - No. 179 GRAFFEO, J. (concurring in McPherson and dissenting in Suarez):
The majority concludes that a person who stabs someone with a knife cannot act with "a depraved indifference to human life" (Penal Law § 125.25 ). To reach this conclusion and limit the applicability of the depraved indifference murder statute, the majority employs reasoning that is inconsistent with the language of the statute as well as the carefully drawn legislative distinctions between intentional murder, depraved indifference murder and manslaughter. Its rationale deviates from our precedent in People v Sanchez (, 98 NY2d 373 2002]), People v Register (, 60 NY2d 270 ) and other cases decided by this Court. Today's decision also fails to recognize and respect the ability of our jury system to reliably differentiate between different types of homicide. For these reasons, I respectfully disagree with the majority's interpretation of the depraved indifference murder statute.
Depraved Indifference Murder
The Legislature codified distinct categories of
homicide in the Penal Law that became effective in 1967. Murder
in the second degree is committed by intentionally causing the
death of another ( see Penal Law § 125.25 ). An intentional
killing may also be classified as first-degree murder if certain
aggravating circumstances concerning the crime, the victim or the
Recognizing that not all criminal conduct is
intentional, the Legislature created several categories of
nonintentional homicide, reflecting differing degrees of criminal
culpability. A distinct type of murder, referred to as "depraved
mind murder," had previously been codified in New York, but the
earlier statute had been interpreted to apply only to deaths that
occurred when a defendant's conduct had endangered more than one
person and was not directed at harming any particular person ( see
Darry v People, 10 NY 120, 147 ). In order to expand the
reach of the offense, the Legislature redesignated this category
of homicide as "depraved indifference murder," classified it as
second-degree murder and provided that the crime is committed
when a person, "[u]nder circumstances evincing a depraved
indifference to human life,  recklessly engages in conduct
which creates a grave risk of death to another person, and
thereby causes the death of another person" (Penal Law § 125.25
). To kill recklessly, as opposed to intentionally, one must
be "aware of and consciously disregard" a risk that conduct
will result in death (Penal Law § 15.05 ). Both of these
Another category of homicide, manslaughter in the second degree, a crime of lesser grade and severity, is also premised on reckless conduct ( see Penal Law § 125.15 ). There is, however, a critical difference between second-degree manslaughter and depraved indifference murder. Depraved indifference murder requires that the actor create a "grave" risk of death (Penal Law § 125.25 ), whereas the manslaughter statute employs a lesser, "substantial" risk of death standard (Penal Law § 15.05 ). When a jury concludes that the lesser degree of risk was created and convicts a defendant of manslaughter, a class C felony, the sentencing options are far less onerous than the penalties authorized for a depraved indifference murder conviction ( see generally Penal Law art 70).
Thus, in delineating between these types of homicide,
the Legislature clearly indicated that the important factors that
distinguish these crimes are whether a person acts intentionally
This Court on a number of occasions has discussed the
meaning of the depraved indifference requirement in the second-
degree murder statute. In People v Register, we explained that
depraved indifference "refers to neither the mens rea nor the
actus reus" of the crime (60 2 at 276). Rather, it is "a
definition of the factual setting in which the risk creating
conduct must occur" ( id.). This is consistent with the carefully
chosen statutory condition that depraved indifference second-
degree murder is available only in " circumstances evincing a
depraved indifference to human life" (Penal Law § 125.25 
[emphasis added]). The Legislature inserted the word
"circumstances" for a reason. As we emphasized in People v
Sanchez, the "circumstances evincing a depraved indifference to
human life . . . focuses not on the subjective intent of the
defendant, 'but rather upon an objective assessment of the degree
From the viewpoint of statutory analysis, the
majority's restrictive application of depraved indifference
murder is inconsistent with the specific language of Penal Law § 125.25 (2) and our long established precedent construing that
statute. According to the majority, the depraved indifference
provision allows an individual to be prosecuted for second-degree
murder if that person recklessly engages in conduct that creates
a grave risk of death to another person and thereby causes the
death of another person in the following situations: (1) where
only one individual is put at risk of death and the accused
"abandons [the] helpless and vulnerable victim in circumstances
where the victim is highly likely to die" (majority op at 13) or
"engages in torture or a brutal, prolonged and ultimately fatal
course of conduct against a particularly vulnerable victim"
(majority op at 14) and (2) where more than one person is put at
risk of death, regardless of the "helpless[ness]" and
"vulnerab[ility] of the victim (majority op at 13), or whether
This limited construction of the statute is unjustified. The language of Penal Law § 125.25 (2) does not remotely suggest that the extent of helplessness and vulnerability of the victim, or the length and nature of an attack, are prerequisites to a determination of depraved indifference. And the statute cannot plausibly be read to suggest that the Legislature intended the phrase "depraved indifference" to carry one definition in the context of a one-on- one altercation, yet mean something completely different when more than one person is endangered by the conduct of another. Furthermore, the legislative amendments to the second-degree murder statute in 1967 were meant to broaden the application of depraved indifference murder, not restrict it to cases like shooting into a crowd, opening a lion's cage or detonating a bomb in a public place, examples cited by the majority.
Aside from the problems inherent in the majority's
inability to reconcile its interpretation with the plain language
of the depraved indifference murder statute, today's decision
signals a fundamental shift in our homicide jurisprudence.
Although it purports to maintain the objective circumstances rule
( see majority op at 17-18), the majority acknowledges that it is
departing somewhat from the standard articulated in Register ( see
majority opinion at 18). Rather than focusing on the grave risk
In this Court's most recent depraved indifference
decision, People v Payne (3 NY3d 266 ), a majority held
that the point-blank shooting of a person in the chest with a
shotgun should not be classified as depraved indifference murder
The majority attempts to reconcile its decision with the principles articulated in Sanchez by stating that the depraved indifference murder conviction in that case was upheld only "because 'others were endangered'" (majority op at 15 n 7, quoting People v Payne, 3 NY3d at 272). But the Sanchez opinion neither relied on danger to multiple individuals as a decisive factor supporting a finding of depraved indifference, nor suggested that such a fact was crucial to its reasoning. To perpetuate this thin distinction further confuses the state of the law in New York.
I expect that the impact of the majority's decision
will not be limited to undermining the principles espoused in
Register and Sanchez. For example, in People v Roe (, 74 NY2d 20
) we concluded that the death of the victim, who was shot
during a game of "Polish Roulette," was properly classified as
depraved indifference murder. Roe had loaded a shotgun with a
combination of live and dummy shells, aimed it at the victim and
pulled the trigger not knowing which type of round had been
chambered. In that one-on-one, close-range shooting, the
defendant neither "abandon[ed] a helpless and vulnerable victim"
(majority op at 13) nor engaged in a "prolonged and ultimately
fatal course of conduct" (majority op at 14), yet we nevertheless
There are other troubling ramifications of this ruling
that will not be limited to the second-degree murder statute.
The crimes of assault in the first degree and reckless
endangerment in the first degree also require that the defendant,
"[u]nder circumstances evincing a depraved indifference to human
life,  recklessly engage in conduct which creates a grave
risk of death to another person" (Penal Law § 120.10 ; see
Penal Law § 120.25). Presumably, the majority's new
interpretation of "depraved indifference" in the context of
second-degree murder will apply with equal force to these two
offenses since identically worded phrases in the same chapter of
laws are usually accorded the same meaning. In light of this
assumption, substantial case law from this Court will have
dubious precedential value, including cases where we concluded
that the requirement of "depraved indifference" is satisfied when
a single gunshot was fired at point blank range into the victim's
temple ( see People v Tuck, , 87 NY2d 828 ), a loaded and
cocked handgun was placed against the temple but was not fired
( see People v Chrysler, , 85 NY2d 413 ) and the victim was
The majority's primary justification for altering our
approach to depraved indifference murder centers on a concern
that prosecutors and juries have been conflating this crime with
intentional murder in the second degree. Contrary to the
majority's belief, recognition of the long-standing rule of law
expressed in Sanchez and Register does not convert "'every
homicide, particularly intentional ones . . . into depraved
indifference murder'" (majority op at 8, quoting People v Payne,
3 NY3d at 270). There is a readily understandable distinction
Intentional and depraved indifference murder are also
distinguishable because once the jury determines that a homicide
was committed purposefully, "the depravity of the circumstances
under which the intentional homicide is committed is simply
Certainly depraved indifference murder should not be
used as a "fallback crime" by prosecutors or juries (majority op
at 17). As the distinctions between the intentional murder and
depraved indifference murder provisions clearly indicate, this
was not the intent of the Legislature and, therefore, is not what
courts should charge juries as the law of this State. Rather,
depraved indifference murder is a viable, morally equivalent
crime, equal in both classification and severity of punishment to
To presume that conflation is wide-spread, one must
necessarily believe that juries are incapable of distinguishing
between intentional and reckless states of mind, and are
similarly unable to determine whether the circumstances of the
defendant's actions created a grave, transcendent risk of death
justifying a conviction of second-degree murder or a substantial
risk of death warranting a manslaughter conviction. I have faith
in the jury system -- jurors are perfectly capable of making
these determinations and it is therefore unnecessary for this
Court to create artificial categories of depraved indifference
murder that are not supported by the language of Penal Law § 125.25 (2). The majority recognizes that "[o]ftentimes it will
not be easy to determine whether a defendant's conscious
objective was to kill or merely to injure" but, nonetheless,
"those are the hard choices to be weighed by the trier of fact"
(majority op at 17). The majority then inexplicably fails to
appreciate that the same is true with respect to distinguishing
between an intentional and reckless state of mind -- a
determination that, although sometimes difficult, nevertheless
Ultimately, the majority's reasoning will not likely clarify this issue for courts and prosecutors, who continue to struggle to determine what this Court's view on depraved indifference will be on the facts presented in a particular homicide case. Although the majority has left open the possibility that additional categories of one-on-one homicides, other than the two explicitly identified in today's decision, may qualify for treatment as depraved indifference murder if the circumstances are "extraordinary" (a term it does not define), trial courts and prosecutors are well advised to tread carefully when dealing with depraved indifference murder in the future, lest further injustices occur.
One thing is certain. We no longer have a category of
reckless homicide that is comparable in grade and penalty to
intentional murder, except in the rare situations authorized by
the majority. There is an urgent need for the Legislature to
reexamine article 125 of the Penal Law in the aftermath of
today's decision. Undoubtedly, there will be future killings
that juries may decide were not committed with an intent to kill,
but were the result of reckless acts committed with a grave
disregard for life. The policy issue is whether this type of
criminal conduct should expose these offenders to criminal
penalties more severe than those available for a class C felony
The Cases Before Us
Based on the facts presented in these two cases, and
applying our established principles of depraved indifference
murder as articulated in Register and Sanchez, I conclude that
there was legally sufficient evidence to support the second-
degree murder conviction of defendant Santos Suarez. Viewed in
the light most favorable to the People, the jury could have
rationally determined that Suarez did not consciously intend to
kill the victim when he became embroiled in a dispute with her,
but rather acted recklessly by disregarding the grave risk that
his conduct would result in the death of the victim. Suarez
testified that he did not intend to kill the victim. Surely
jurors are allowed to credit this testimony. Suarez also alleged
that it was his girlfriend who produced the knife during their
verbal confrontation. If found to be a credible claim by the
jury, this was an indication that the attack by defendant was not
premeditated ( cf. People v Gonzalez, 1 NY3d 464 [after seeing the
victim, the defendant departed and later returned with the murder
weapon]; People v Hafeez, , 100 NY2d 253 [retaliatory attack was
plotted in advance]). There was also ample evidence that
defendant's actions created such an exceptionally high, grave
As for defendant Trisha McPherson, I concur with the majority that the evidence was insufficient to justify a depraved indifference murder conviction. Unlike in Suarez, McPherson was not charged with both depraved indifference murder and intentional murder and the People did not assert at trial that she possessed an intent to kill. The only issue was whether there were objective circumstances evincing a depraved indifference to human life. The proof, even viewed in the People's favor, was that McPherson carried the knife to the scene and during an escalating argument with the victim, inflicted a single stab wound. McPherson then immediately called 911 for help and remained with the victim until she heard sirens indicating that assistance was on the way before departing, demonstrating her efforts to minimize the possibility that the wound she inflicted would prove to be fatal.
Accordingly, in People v Suarez, I would affirm
defendant's conviction; in People v McPherson, I would modify by
dismissing the depraved indifference murder conviction. In light
1 Certain enumerated aggravating factors elevate intentional murder in the second degree to murder in the first degree (Penal Law § 125.27 ).
2 See e.g. Abraham Abramovsky & Jonathan I. Edelstein, Depraved Indifference Murder Prosecutions in New York: Time for Substantive and Procedural Clarification, 55 Syracuse L Rev 455 (2005); Paul Shechtman, The Meaning of Depraved-Indifference Murder: New Legislation?, NYLJ, Apr. 4, 2005, at 4, col 4; Brian F. 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?, NY St BA NY Crim L Newsl, Fall 2004, at 5; 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 be 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'" (dissenting op at 1).
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 3 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  [depraved indifference murder conviction upheld because "others were endangered" ( Payne, 3 NY2d 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 citation 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]).
10 Adherence to the Register/ Sanchez analysis may have adverse consequences for the stability of previous convictions. Some federal court decisions indicate that the statute as interpreted according to Register and Sanchez raises constitutional problems that should result in the release of some defendants on federal collateral review ( see Jones v Keane, 02 Civ 1804 (CLB), 2002 US Dist LEXIS 27418 [SDNY, May 22, 2002], rev'd on other grounds at 329 F3d 290 [2d Cir 2003]; St. Helen v Senkowski, 02 Civ 10248 (CLB), 2002 U.S. Dist. LEXIS 26642 [SDNY, Sep 19, 2003], rev'd on other grounds at 374 F3d 181 [2d Cir 2004]; see also Policano v Herbert, __F3d __, 2005 WL 3046798, 2005 US App LEXIS 24558 [2d Cir, Nov. 15, 2005]). Today's decision should alleviate those concerns.
11 This view was expressed in the dissenting opinions of G. B. Smith, Ciparick and Rosenblatt, JJ in Sanchez (98 2 373, 401- 02, 416 ).
12 There are three other categories of nonintentional murder in the second degree, including felony murder ( see Penal Law § 125.25 , , ).
13 We also observed that the commentary to the Model Penal Code, which influenced our depraved indifference murder statute, was consistent with this view ( see Sanchez, 98 NY2d at 384; Model Penal Code § 210.2, Comment 4, at 21-22).
14 Additionally, the rule announced by the majority in this case and Payne essentially creates a mandatory legal presumption that a person intends the ordinary consequences of his or her voluntary acts, which "reliev[es] the State of the burden of proof enunciated in Winship on the critical question of [the defendant's] state of mind" ( Sandstrom v Montana, 442 US 510, 521 ; see In re Winship, 397 US 358 ).
15 See Model Penal Code § 210.2, Comment 4, at 22 ("[i]t must be left directly to the trier of fact under instructions which make it clear that recklessness that can fairly be assimilated to purpose or knowledge should be treated as murder and that less extreme recklessness should be punished as manslaughter").