1 No. 96
The People &c.,
Respondent,
v.
Larry Feingold,
Appellant.

2006 NY Int. 97

July 5, 2006

This opinion is uncorrected and subject to revision before publication in the New York Reports.

Jillian Harrington, for appellant.
Patricia Curran, for respondent. G. B. SMITH, J.: Defendant was convicted, after a nonjury trial, of reckless endangerment in the first degree in violation of Penal Law § 120.25. Because the verdict, as enunciated by the trial judge and affirmed by the Appellate Division, does not conform to this Court's precedents, we modify by reducing the conviction to reckless endangerment in the second degree. FACTS In February 2003 the 52-year-old defendant, an attorney working as an administrative law judge, attempted suicide in his 12th floor Manhattan apartment. Sealing the apartment door with tape, he blew out the pilot lights of his stove, turned on the gas, took tranquilizers and fell asleep in front of the oven, expecting the gas to kill him. Several hours later, a spark, apparently from the refrigerator compressor, ignited the gas, causing an explosion that wrecked the walls of his apartment and heavily damaged a number of neighboring apartments.
No one else was seriously injured and defendant himself survived. He was charged with first-degree reckless endangerment pursuant to Penal Law § 120.25, which provides that a person violates the statute "when, under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person."[1] Supreme Court found, in a non-jury trial, that defendant's state of mind was not one of depraved indifference but nevertheless, relying on People v Register, (, 60 NY2d 270 [1983]), found him guilty and sentenced him to five years' probation. The Appellate Division affirmed, and a Judge of this Court granted defendant leave to appeal. DISCUSSION The People first contend that defendant's argument that depraved indifference is a mens rea is unpreserved because he did not plainly present it to the trial court. The trial judge's decision, however, demonstrates that he specifically confronted and resolved this issue. Under these circumstances, we conclude that the preservation was adequate ( People v Prado, 4 NY3d 725 [2004]).
To begin with, there is no dispute that the term “depraved indifference” has the same meaning in both the depraved indifference murder statute and the reckless endangerment statute. Defendant wishes this Court to say that the trial court should have viewed defendant's conduct with a subjective eye where the defendant must "evince a wicked and mischievous disregard ( i.e. utter indifference) for the near certain consequences of his irresponsible act." Defendant argues that under this test, depraved indifference was not established - - and indeed ruled out by the factfinder -- and therefore his conviction should be reversed.
The People rely on Register, asserting that depraved indifference refers not to the mens rea or the actus reus of the crime but to the "factual setting in which the risk creating conduct must occur." In People v Register, after a night of drinking, defendant shot a man fatally for no explained reason. Defendant was acquitted of intentional murder but convicted of depraved indifference murder. In a 4-3 decision, a majority of this Court concluded that the Legislature did not intend that a mens rea element beyond mere recklessness be included in the definition of depraved indifference murder. “The concept of depraved indifference was retained in the new statute (adopted in 1965) not to function as a mens rea element, but to objectively define the circumstances which must exist to elevate a homicide from manslaughter to murder” ( People v Register, 60 NY2d at 278). The three dissenters, however, contended that the predecessor statutes to Penal Law 125.25(2) defined depraved indifference as a mens rea and that depraved mind and depraved indifference “connote a culpable mental state...” (60 2 at 282).
In People v Sanchez (, 98 NY2d 373 [2002]), the jury found the defendant not guilty of intentional murder but guilty of depraved indifference murder. The deceased and the defendant had previously been friends, and the shooting occurred after an argument erupted on the day of the shooting. Relying on People v Register, the majority of a divided court concluded that although the gun had been fired at point-blank range, it was fired at an angle, the shooting was instantaneous and impulsive and the jury could have concluded that “defendant's homicidal level of mental culpability was reckless rather than intentional” (98 2 at 378). In dissent, Judge G. B. Smith stated, “To uphold the conviction of depraved indifference murder in this case is to authorize the substitution of depraved indifference murder for intentional murder at any time that a person shoots and kills another” (98 2 at 393). Also in dissent, Judge Rosenblatt stated that “by holding the facts at hand sufficient to establish depraved indifference murder, the majority leaves no conceivable circumstances under which a charge of intentional murder will not be amenable to a conviction for depraved indifference murder” (98 2 at 394). Judge Rosenblatt added: “ Register dealt chiefly with the defense of intoxication, but ironically, the case has served as the fulcrum for what has become a steadily growing prosecutorial practice of charging defendants with depraved indifference murder as a companion count to intentional murder. The Register majority brushed aside the dissenters' prediction that the decision 'would result in wholesale depraved mind murder prosecutions for what are essentially intentional murders'[]. That prediction proved prescient, however, as revealed by the enormous growth in depraved indifference murder companion counts post- Register” (98 2 at 398).
After Register and Sanchez, and beginning in 2003, a number of decisions by this Court have pointed the law in a different direction. In People v Hafeez (, 100 NY2d 253 2003]), after a jury found defendant not guilty of intentional murder but guilty of depraved indifference murder, the Appellate Division held that the evidence was insufficient for depraved indifference murder and this Court agreed. The evidence was that months after an unsuccessful confrontation with the deceased, the defendant and co-defendant lay in wait for the deceased, and the co- defendant stabbed him to death with a knife. Defendant was convicted of depraved indifference murder under an accomplice liability theory. We stated that: “to meet their burden for depraved indifference murder, the People must show that defendant's acts were 'imminently dangerous and presented a very high risk of death to others'... Here the actions of both defendants were focused on first isolating, and then intentionally injuring, the victim. From this record there exists no valid line of reasoning that could support a jury's conclusion that defendant possessed the mental culpability required for depraved indifference murder” (100 2 at 259). In a concurrence, Judge Rosenblatt said that "the Court is limiting Sanchez by properly rejecting the incongruous notion that an intentional killing can reflect depraved indifference," and indicated that “the critical element in depraved indifference murder is not recklessness, but depraved indifference” (100 2 at 260).
In People v Gonzalez (1 NY3d 464 [2004]), after a jury found the defendant not guilty of intentional murder but guilty of depraved indifference murder, this Court determined that a defendant could not be convicted of depraved indifference murder where a defendant first shot the deceased in the chest from a distance of six to seven feet, then shot him in the head as he fell to the floor and shot him eight more times as he lay on the floor. We concluded that the evidence indicated only an intentional murder. We stated: “Depraved indifference murder differs from intentional murder in that it results not from a specific, conscious intent to cause death, but from an indifference to or disregard of the risks attending defendant's conduct ... Depraved indifference murder does not mean an extremely, even heinously, intentional killing. Rather, it involves a killing in which the defendant does not have a conscious objective to cause death but instead is recklessly indifferent, depravedly so, to whether death occurs” (1 3 at 467 - 468).
In People v Payne (3 NY3d 266 [2004]), after a jury had acquitted the defendant of intentional murder but convicted him of depraved indifference murder, this Court held that defendant could not be found guilty of depraved indifference murder. There, a twenty-year friendship between the defendant and the deceased was strained after the deceased was arrested and accused of sexually abusing an eight-year-old playmate of defendant's daughter. The defendant went to the home of the deceased and shot him in the chest with a 12-gauge "elephant" shotgun. We stated, “As the drafters of the Penal Law put it, depraved indifference murder is 'extremely dangerous and fatal conduct performed without specific homicidal intent but with a depraved kind of wantonness: for example, shooting into a crowd, placing a time bomb in a public place, or opening the lions' cage in the zoo....” (3 3 at 272). In Payne, we stressed that such “[i]ndifference to the victim's life contrasts with the intent to take it” (3 3 at 270; see also Gonzalez, 1 NY3d at 467; Hafeez, 100 NY2d at 258 - 259).
Finally, in People v Suarez (6 NY3d 202 [2005]), the jury acquitted defendant of intentional murder but found him guilty of depraved indifference murder. The defendant had stabbed his girlfriend in the throat, the chest and the abdomen and left her to bleed to death. In People v McPherson, decided with Suarez, defendant was charged only with depraved indifference murder and first degree manslaughter. She was convicted of depraved indifference murder. There, the defendant had stabbed the deceased with a knife and left him to die. This Court concluded that rarely can depraved indifference murder apply to the killing of a single victim. In a concurrence, three Judges of this Court indicated that they would "explicitly" overrule People v Register and People v Sanchez ( id. at 217 [G.B. Smith, Rosenblatt and R.S. Smith, JJ., concurring]). Another Judge concurred on constraint of our decisions in Hafeez and Payne ( id. at 219 [Read, J., concurring]). While the Suarez Court did not explicitly overrule Register and Sanchez, we conclude that the law has changed to such an extent that People v Register and People v Sanchez should no longer be followed.
We say today explicitly what the Court in Suarez stopped short of saying: depraved indifference to human life is a culpable mental state. Our dissenting colleagues contend that this final step in the overruling of Register is unwarranted and unnecessary.[2] Perhaps we would agree with that were it not for the setting in which the present case comes to us. In earlier cases ( Hafeez, Gonzalez, Payne, Suarez), we reversed depraved indifference murder convictions without having to discuss explicitly the question of mens rea. It was enough to say __ and we said it repeatedly __ that those defendants did not commit depraved indifference murder because depravity or indifference was lacking.
Beginning with Hafeez, the Register/ Sanchez rationale was progressively weakened so that it would no longer support most depraved indifference murder convictions, particularly one- on-one shootings or stabbings. Indeed, Judge Read, in her concurrences in Suarez and McPherson, said that the results were compelled by Hafeez and Payne.
In Suarez, it was not necessary for us to state explicitly whether depraved indifference is a mental state (mens rea). In the case before us, however, the trial judge rendered his verdict in a way that requires us to address directly the question of mens rea.
Here, defendant might well be said to have acted with the mens rea of depraved indifference had the fact-finder simply announced a guilty verdict. Viewing the evidence in the light most favorable to the People, we could properly have affirmed the conviction, concluding that the fact-finder inferred that defendant had the requisite mental state (depraved indifference). But the verdict does not allow that to happen here. Here, the trial Judge said he would have acquitted defendant of first degree reckless endangerment but felt himself prohibited by Register from doing so. The Appellate Division ignored the trial Judge's findings and affirmed, citing Register. Given the trial judge's findings, we cannot affirm the conviction because we cannot conceive that a person may be guilty of a depraved indifference crime without being depravedly indifferent. When a jury (or here, the court at a bench trial) pointedly says that defendant was not depravedly indifferent, it is not our place to say that he was.
In Suarez, we could readily hold that under any view of the evidence Suarez's acts did not amount to depraved indifference. The case before us is different. The fact-finder here went out of his way to explain that "this defendant was a plainly depressed individual, who committed an extremely reckless and foolish act not because of his lack of regard for the lives of others but because of his focus upon his troubles and himself ... While being reckless, the defendant's state of mind was not one of extreme wickedness, or abject moral deficiency, or a mischievous disregard for the near certain consequences of his irresponsible act." Thus, the fact-finder actually pronounced defendant innocent of the core criminal element, depraved indifference. The dissenters protest this, but their objection is more properly directed against the verdict than against the law. That a large number of people were endangered does not mean that defendant was depravedly indifferent, particularly when the fact-finder went to great pains to say the opposite.
We regard this as a juridical imperative, much the same as in any analogous situation. A person accused of stealing may be guilty of larceny, but a guilty verdict may not stand if the jury finds in a special verdict that the defendant did not intend to take anything. So, too, a person may not be said to have acted with the mens rea of depraved indifference when the jury (or court as fact-finder) tells us that he was not depravedly indifferent.
In short, we do not say that someone who endangers others by turning on the gas jets may never be found guilty of a depraved indifference crime. Here, however, because the fact- finder told us that defendant was not depravedly indifferent, he cannot be properly convicted of first-degree reckless endangerment.
While our dissenting colleagues rely primarily on Suarez, we are unable to read Suarez as they do. We disagree with the Chief Judge's suggestion that the per curiam opinion in Suarez "decided the question" by declining the suggestion of the concurrence to overrule Register and Sanchez. The three authors of the concurrence also signed the per curiam opinion and did not think that they were deciding the question contrary to their own views. The difference between the per curiam and the concurrence in Suarez was over whether to recognize “explicitly” that Register and Sanchez had been de facto overruled in prior cases. To the extent that the per curiam opinion may have left that question in doubt, the doubt is now removed.
We agree with the statement in Judge Ciparick's dissent that Suarez correctly states the law in saying 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 harm results or not.” We also accept Judge Ciparick's statement, paraphrasing Suarez, that “a depraved and utterly indifferent actor is someone who simply does not care if another is injured or killed.” To us, however, the words “utter disregard,” “willingness,” and “does not care” can only describe a state of mind. We thus confirm what is implicit in the line of cases from Hafeez to Suarez. This Court has adopted the view of the Register and Sanchez dissents that “depraved indifference to human life” is a culpable mental state.
Our holding today will not, as the Chief Judge fears, prevent depraved indifference murder convictions in cases where they are warranted. The mens rea of depraved indifference to human life can, like any other mens rea, be proved by circumstantial evidence. We agree that the Chief Judge's hypothetical _- “a person boarded an empty train car and, in order to commit suicide, derailed the train, thereby killing passengers in other cars” _ states a “quintessential case” of depraved indifference murder, because in that case the circumstantial proof of depraved indifference would be compelling. The Chief Judge suggests it is almost equally compelling here _- and, indeed, perhaps a reasonable fact-finder could infer depraved indifference from these facts. But the fact-finder in this case did not.
Accordingly, the order of the Appellate Division should be modified by reducing defendant's conviction to reckless endangerment in the second degree and remitting to Supreme Court for resentencing and, as so modified, affirmed.[3] People v Feingold No. 96

Footnotes

1  Identical language is contained in the depraved indifference murder statute, Penal Law § 125.25(2), which reads: “A person is guilty of murder in the second degree when (2) Under 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.”

2  Contrary to what Judge Ciparick's dissent may suggest, we do not overrule "case law dealing with the crime of first-degree reckless endangerment." We overrule, by implication, only those depraved indifference reckless endangerment cases that rest on the premise that depraved indifference is measured not by a culpable mental state but by an objective assessment of the risk involved. Further, we reject Judge Ciparick's assertion that we have overruled Suarez. We have, however defined depraved indifference as a culpable mental state -- a point not definitively addressed in Suarez.

3  Penal Law § 120.20 reads, “A person is guilty of reckless endangerment in the third degree when he recklessly engages in conduct which creates a substantial risk of serious physical injury to another person.”

4   "A person is guilty of reckless endangerment in the first degree when, under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person" (Penal Law . 120.25).

5   Penal Law § 15.05 (3) defines "recklessness" as follows: "A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation."

6   Penal Law . 120.20 defines reckless endangerment in the second degree as when a person "recklessly engages in conduct which creates a substantial risk of serious physical injury to another person." This crime is a class A misdemeanor.

7   Certainly the Per Curiam opinion in Suarez represented "the concurrence of four . . . necessary to a decision" (NY Const, art VI, § 2 [a]). The majority did not implicitly or "explicitly" overrule Register and Sanchez, nor had it been "de facto overruled in prior cases" (maj op at 13). The concurrence of three in Suarez would have preferred that result, and achieves it here.

8   The abuses that we have sought to correct -- the prosecution of twin-count indictments under both intentional and depraved indifference theories -- are not present here. I see no need to go beyond what we held in Suarez to expand the definitional scope of depraved indifference by holding that proof of depraved indifference now requires an assessment of defendant's subjective intent, especially in a case involving multiple potential victims.

9   Even the smell of gas in a residence should precipitate some investigation because danger is obvious.

10   Of course, reckless endangerment in the first degree, like depraved indifference murder, also requires recklessness, which involves the conscious disregard of a known risk ( see Penal Law § 15.05 [3]). Defendant does not contend that the trial proof was insufficient to establish the element of recklessness, and the trier of fact expressly found that defendant committed "an extremely reckless and foolish act."