The People, Respondent,v.Jose Maldonado, Appellant.BriefN.Y.June 4, 2014To be argued by JOSHUA M. LEVINE (20 Minutes) APL-2013-00218 Court of Appeals STATE OF NEW YORK PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - JOSE MALDONADO, Defendant-Appellant. BRIEF FOR DEFENDANT-APPELLANT LYNN W. L. FAHEY Attorney for Defendant-Appellant 2 Rector Street, 10th Floor New York, N.Y. 10006 Telephone: (212) 693-0085, ext. 212 Facsimile: (212) 693-0878 JOSHUA M. LEVINE Of Counsel October 4, 2013 TABLE OF CONTENTS Page TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF FACTS Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 The People’s Case at Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Defense Motion for a Trial Order of Dismissal . . . . . . . . . . . . . . . . . . . . 13 Charge and Verdict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 The Appellate Division Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 ARGUMENT THE EVIDENCE OF DEPRAVED INDIFFERENCE MURDER WAS LEGALLY INSUFFICIENT GIVEN TESTIMONY ESTABLISHING THAT APPELLANT CONSISTENTLY TRIED TO AVOID HURTING ANYONE WHILE FLEEING FROM POLICE . . . . . . . . . . . . . . . . . . . . 17 A. “Depraved Indifference” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 B. The Insufficient Proof of Depraved Indifference Murder . . . . . . . 22 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 TABLE OF AUTHORITIES CASES In re Winship, 297 U.S. 358, 364 (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 17 Jackson v. Virginia, 443 U.S. 307 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 17 People v. Atkinson, 7 N.Y.3d 765 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 People v. Barboni, 21 N.Y.3d 393 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 19 People v. Bussey, 19 N.Y.3d 231 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . 3, 19, 31 People v. Feingold, 7 N.Y.3d 288 (2006) . . . . . . . . . . . . . . . . 3, 18-19, 21, 29-31 People v. Gomez, 65 N.Y.2d 9 (1985) . . . . . . . . . . . . . . . . . . 4, 14, 22, 25-26, 29 People v. Jean-Baptiste, 44 A.D.3d 792 (2d Dep’t 2007), aff’d, 11 N.Y.3d 539 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 People v. Lewie, 17 N.Y.3d 348 (2011) . . . . . . . . . . . . . . . . . 3, 18-19, 25, 27-30 People v. Maldonado, 100 A.D.3d 657 (2d Dep’t 2012) . . . . . . . . . . . . . . . . . . 16 People v. Matos, 19 N.Y.3d 470 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 19 People v. Poplis, 30 N.Y.2d 85 (1972) . . . . . . . . . . . . . . . . . . . . . 3, 19, 25, 27, 29 People v. Prindle, 16 N.Y.3d 768 (2011) . . . . . . 3-4, 17, 19-23, 25-26, 28-29, 31 People v. Register, 60 N.Y.2d 270 (1983)) . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 29 People v. Suarez, 6 N.Y.3d 202 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . 3-4, 17, 19 ii CONSTITUTIONAL PROVISIONS AND STATUTES U.S. Const., Amend. V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 U.S. Const., Amend. XIV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 N.Y. Const., Art. 1, § 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 P.L. § 270.35 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 P.L. § 155.30[8] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 P.L. §§ 125.25[2] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-3, 17-18 P.L. § 15.05[3] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 P.L. § 125.15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 C.P.L. § 470.05[2] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 C.P.L. § 450.90[1] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 iii COURT OF APPEALS STATE OF NEW YORK -------------------------------------------------------------X : THE PEOPLE OF THE STATE OF NEW YORK, : : Respondent, : : - against - : : JOSE MALDONADO, : : Defendant-Appellant. : : -------------------------------------------------------------X PRELIMINARY STATEMENT By permission of the Honorable Jonathan Lippman, Chief Judge of the Court of Appeals, granted on August 6, 2013, appellant Jose Maldonado appeals from an order of the Appellate Division, Second Department, entered November 7, 2012, which affirmed a judgment of the Supreme Court, Kings County, rendered on July 8, 2010, convicting him, after a jury trial, of murder in the second degree (P.L. § 125.25[2]), unlawful fleeing a police officer in a motor vehicle in the first degree (P.L. § 270.35), and grand larceny in the fourth degree (P.L. § 155.30[8]), and sentencing him to concurrent prison terms of 20 years to life, 3½ to 7 years, and 2 to 4 years, respectively. On September 12, 2013, this Court granted appellant poor person relief and assigned Lynn W. L. Fahey as counsel on appeal. No stay has been sought. Appellant is currently incarcerated pursuant to the judgment. This Court has jurisdiction pursuant to C.P.L. § 450.90[1] to entertain this appeal and review the issue raised. The issue presented — whether the evidence was legally sufficient to sustain the depraved indifference murder conviction — was preserved for appellate review by defense counsel’s timely and specific motion for a trial order of dismissal as to the murder count, and the court’s ruling, which specifically confronted and resolved the claim raised on appeal (A364-369, A473, A503-507). QUESTION PRESENTED Was the evidence of depraved indifference murder legally insufficient given testimony establishing that appellant consistently tried to avoid hurting anyone while fleeing from police? SUMMARY OF ARGUMENT A person commits “depraved indifference” murder when, “[u]nder circumstan- ces 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 another 2 person’s death. P.L. § 125.25[2]. In People v. Feingold, 7 N.Y.3d 288, 290 (2006), the Court held that depraved indifference constitutes a “culpable mental state.” 7 N.Y.3d at 294. It 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.” Id. at 296, quoting People v. Suarez, 6 N.Y.3d 202, 214 (2005). A “depravedly indifferent” person is therefore “not just willing to take a grossly unreasonable risk to human life — that person does not care how the risk turns out.” People v. Lewie, 17 N.Y.3d 348, 359 (2011). Accord, People v. Barboni, 21 N.Y.3d 393 (2013); People v. Matos, 19 N.Y.3d 470, 476 (2012); People v. Bussey, 19 N.Y.3d 231, 236 (2012). The possession of this heightened, especially egregious mens rea renders an individual who acts recklessly as blameworthy as someone who intentionally causes the same result. Suarez, 6 N.Y.3d at 214. Such a depravedly indifferent mental state is, therefore, restricted to the “small, and finite, category of cases evidencing utter depravity, uncommon brutality and inhuman cruelty,” Suarez, 6 N.Y.3d at 216, and “is found only in ‘rare cases.’” Lewie, 17 N.Y.3d at 359. Thus, depraved indifference murder requires more than recklessness and “an incidental tragic result,” such as a death resulting from “gross carelessness in motor vehicle operation.” People v. Poplis, 30 N.Y.2d 85, 88 (1972); accord, People v. Prindle, 16 N.Y.3d 768 (2011). 3 In the instant case, appellant, who was driving a stolen minivan, fled from police at high speed through the streets of Greenpoint, Brooklyn. During the pursuit, as numerous witnesses attested, he repeatedly swerved to avoid striking pedestrians or vehicles. He nevertheless struck and killed a pedestrian during one of these evasive maneuvers. Apprehended a few blocks later, after he crashed into a parked vehicle after again swerving to avoid an accident, he told police he had deliberately crashed to avoid hitting anyone else. Rather than showing that appellant acted with the “utter depravity, uncommon brutality and inhuman cruelty” required for depraved indifference, Suarez, 6 N.Y.3d at 216, this evidence demonstrated that appellant, while concededly operating the minivan recklessly, was not uncaring about whether anyone else lived or died. Therefore, unlike in People v. Gomez, 65 N.Y.2d 9 (1985), on which the court below relied, and like in Prindle, to which this case was materially identical, appellant’s conduct fell far short of that necessary to prove depraved indifference to human life. The proof of depraved indifference murder was, therefore, legally insufficient, and appellant’s conviction of that crime violated due process. Jackson v. Virginia, 443 U.S. 307 (1979); In re Winship, 397 U.S. 358, 364 (1970). 4 STATEMENT OF FACTS Introduction When police stopped appellant, who was driving a stolen minivan, on a Brooklyn street, he drove away, fleeing at high speed through local streets. Numerous police and civilian witnesses described him swerving and weaving in and out of traffic to avoid striking anyone as he fled. He nevertheless struck a pedestrian who was crossing the street at an intersection. He crashed the minivan into a parked vehicle a few blocks later. The court refused to dismiss or reduce the depraved indifference murder count with which he was charged, and the jury convicted him of that count. The People’s Case at Trial Shortly after 2:00 p.m. on April 27, 2009, Lieutenant Philip Roy and Police Officers Steven Truglio and Andrew Bielawski were driving an unmarked Ford Taurus north on Graham Avenue near Jackson Street in Brooklyn when appellant pulled a white Dodge Caravan minivan around the right side their car and cut in front of it (Truglio: A93-98, A114-116; Bielawski: A134-135; Roy: A184-185).1 Truglio activated his lights and siren to initiate a stop, and appellant pulled over near the next 1Numbers in parentheses refer to pages of the Appendix. 5 intersection (Truglio: A94, A96, A109; Bielawski: A134-135; Roy: A185-186). When the officers got out of their vehicle and Truglio approached the driver’s door of the minivan, appellant made eye contact with him, put the vehicle into gear, and drove off up Graham Avenue (Truglio: A96-A97, A109, A125-126; Bielawski: A136; Roy: A186-187). The officers got back into the Taurus and, for the next several blocks, pursued appellant through local streets (Truglio: A98, A126; Bielawski: A136; Roy: A187). Appellant proceeded north on Graham, increasing his speed to approximately 40 m.p.h.,2 went through a red light at Graham and Meeker Avenues, turned right onto Driggs Avenue, a one-way street on which he drove the wrong way, then turned right onto McGuinness Boulevard (Truglio: A98-100, A110-111, A127, A130; Bielawski: A136-137; Roy: A187). The officers lost sight of him momentarily, but then saw him going the wrong way on a one-way street toward Manhattan Avenue, until he turned right onto Manhattan (Truglio: A100, A111; Bielawski: A137; Roy: A188). As the officers approached the intersection of Driggs and Manhattan, they saw appellant driving north on Manhattan through the intersection “at a high rate of speed,” about “40 and accelerating” (Truglio: A101; Bielawski: A138-139). 2The unposted speed limit in effect throughout the area was 30 m.p.h. (Truglio: A72, A79, A120-121; Det. Richard Carney: A236). 6 Truglio turned onto Manhattan Avenue and continued to follow appellant through “heavy” traffic (Truglio: A101-102; Bielawski: A138-139; Roy: A188-189, A194). According to Truglio, “to keep proceeding” on the avenue and “ avoid traffic,” as well as to go through red lights, appellant crossed double yellow lines and “swerv[ed] in and out” of traffic (A101-102). Roy testified that appellant was “eluding” and “going in and out” of traffic while the officers were “stuck in the flow of traffic” on Manhattan Avenue (A194). John Combs was standing in front of 745 Manhattan Avenue when he saw the unmarked Taurus, with lights and siren on, about two car lengths behind appellant’s minivan (Combs: A312-315, A318-320). When traffic built up, the minivan moved into the southbound lane, sped up to about 40 or 50 m.p.h., and continued through the intersection at Manhattan Avenue and Noble Street without “slow[ing] down much” (Combs: A314-315A320). As appellant approached the intersection of Manhattan Avenue and Milton Street, he moved into the southbound lane and proceeded through a red light. As he did, he almost struck a woman who was crossing the street (Truglio: A102-103, A123-124; Bielawski: A139, A145; Roy: A189). According to Truglio, the woman backed out of the way as appellant “proceeded around” her; Truglio acknowledged having testified in the grand jury that, as the woman was crossing the street, appellant 7 “swerved back into the northbound lane,” and that, had he “continued going the way he was going, he would have struck her,” but “[i]nstead he swerved his car and went around her” (A124-125). According to Roy’s trial testimony, the woman “dove[] out of the way and went back toward the sidewalk” as appellant “made an adjustment back into the yellow lane [sic]” (A189-190). At about this point, Roy directed Truglio to end the pursuit, whereupon Truglio slowed down while continuing to proceed north on Manhattan Avenue (Truglio: A103, A129; Bielawski: A139-140; Roy: A190). Trznadel Marcin was driving southbound on Manhattan Avenue, approaching the intersection of Kent Street. He was about to turn left, and another driver in the northbound lane was about to turn right, when appellant, “out of nowhere,” approached the intersection, going north at about 60 m.p.h., and swerved around the other driver into the southbound lane (A69-72). To avoid a collision, Marcin quickly moved his vehicle to the side, then stopped and looked in his side-view mirror (A72). He saw appellant in the mirror as appellant approached the next corner, India Street, going north at about the same speed in the southbound lane. There was a car stopped at the red light on Manhattan Avenue on each side of India Street, one each in the northbound and southbound lanes. Appellant ran the red light and “swerve[d] in 8 between the cars,” then “just kept on going, and he struck a pedestrian,” Violet Kryzak, who was in the crosswalk about four feet from the sidewalk (A73). Elizabeth Nassoor was walking on Manhattan Avenue near Java Street when she saw the minivan speeding north up the avenue — she estimated at about 70 m.p.h. (Nassoor: A55-56). There were vehicles stopped in the northbound lane at the intersection of Manhattan and India Street, and the “walk” signal indicated the right- of-way for pedestrians crossing the avenue (Nassoor: A57-58). According to Nassoor, as appellant entered the intersection, he “swerved” into the southbound lane “into oncoming traffic,” then “swerved” into the northbound lane so as “not to hit an oncoming car.” As he re-entered the northbound lane, he struck Kryzak, who was walking in the middle of the crosswalk (Nassoor: A57-58). Olga Ortega, who was walking on Manhattan Avenue between Java and India Streets, saw appellant driving “very fast” or “super fast” northbound in the southbound lane and through a red light at India Street (Ortega: A170-173). She and Ethan White, who was also on Manhattan Avenue, heard a loud “bang” (White: A82- 84; Ortega: A173), and Shirley Rubero, who was near the corner of Manhattan and Java, thought appellant was going “about 80” just before she heard an impact (A324- 325). Kryzak’s body flew about two stories into the air, hit the ground about a third of the way up the block, and slid along the pavement until it stopped near the next 9 intersection, Huron Street, about 150 feet away (Nassoor: A59-60; Marcin: A75; White: A84-85; Ortega: A173-174; Rubero: A326-327). Appellant kept going north on Manhattan Avenue “like nothing happened” (Nassoor: A60; Marcin: A74; Ortega: A173). Marcin did not see brake lights and thought appellant did not slow down (A74-75); White estimated that appellant sped away at “highway-type speed,” possibly “sixty-plus” (A85-86). James Helmbold was stopped at a red light in his Nissan pickup truck, a few blocks farther north, facing south on Manhattan Avenue at Dupont Street (Helmbold: A332). He saw the minivan two or three blocks away, traveling north, “swerving around traffic,” into the southbound lane, and accelerating. When the light changed to green, Helmbold began to proceed through the intersection, but saw that the minivan was not slowing down or returning to the northbound lane, so he cut to the left, into oncoming traffic, to avoid a head-on collision; he “guesstimate[d]” the minivan was going 50 to 70 m.p.h. and accelerating. Appellant “swerved to his left to avoid” Helmbold’s vehicle, then crashed into some parked vehicles behind Helmbold and to his right (Helmbold: A333-334).3 3Based on an analysis of skid marks and drag factor (a friction measurement), Police Officer Edward Rosovich could say only that appellant’s speed exceeded 38.7 m.p.h. at the moment of impact with the parked vehicles (A212, A226-228, A232). 10 Appellant jumped out of the minivan and tried to run down Dupont Street, but several pedestrians pursued and stopped him. Police Officer Leanna Brown and her partner arrived almost immediately and took appellant into custody (Brown: A162, A165-166; Helmbold: A335-336). Meanwhile, emergency personnel arrived on the scene where Kryzak lay in the street (Paramedic Allesandro Negri: A32-33, A37; E.M.T. Jessica Maldonado: A42; Nassoor: A60-62; Marcin: A75-77; White: A86; Truglio: A104-105; Bielawski: A140-142; Ortega: A174; Roy: A191-192; Carney: A235; Rubero: A326-328). Doctor Jennifer L. Hammers determined that Kryzak had died as a result of blunt impact trauma (A309). Bruce Parish, the owner of the minivan, had parked it in front of his home that afternoon, only to discover shortly thereafter that it was gone (Parish: A153-156). Detective John Entenmann determined that the van’s ignition lock assembly had been forcibly removed, permitting it to be started with a screwdriver (A293-294). Appellant was brought to the 94th Precinct station house, where, after waiving his Miranda rights, he made oral and written statements to Detective Richard Carney and Sergeant Kaplan (Carney: A237-238, A241-243, A245).4 4A CD recording of appellant’s oral statement was received in evidence as People’s Exhibit 9 (A248), and the prosecutor provided the jury with a transcript of (continued...) 11 Appellant admitted stealing the minivan and fleeing when the officers approached him because he had just stolen the vehicle and had no licence (A243, A245, A484, A488-490, A498-499). He was not familiar with the neighborhood, and he made a series of right turns to get away from the police, hoping they would “eventually . . . fall back” (A243, A490-491, A499). When they did not, he “kept on speeding,” “just swerving,” and “ducking cars” (A245-246, A484, A490-491). He found himself on an avenue, where he “swerve[d] in and out of the lanes” and wove “in and out of the cars, swerving, almost hitting a bunch of people a bunch of times” (A243-244, A246, A484, A491-492). At one point after swerving he looked in the rear view mirror and saw the police “right behind” him (A244, A246, A484, A500). When he looked forward again, going against traffic, Kryzak was “right there,” crossing the street (A246, A484, A494, A497, A500). He “tried to swerve” but he struck her “in the hand or something” (A244, A484, A491). He thought he was going about 60 or 70 m.p.h. at that point (A501). He kept going for a couple of blocks, and estimated that he was driving at 90 or 100 m.p.h. (A244, A246, A484, A500). There 4(...continued) the recording as an aid in listening to it (A250-252). The following summary of appellant’s statements is taken from appellate counsel’s review of the recording, as well as Detective Carney’s recounting of appellant’s oral and written statements at trial (A243-246). Copies of the written statement, which was received in evidence as People’s Exhibit 8 (A245), and the transcript are included in the Appendix (A484- 502). 12 were “more people in traffic” and so, to avoid hitting anyone else, he decided to crash into a parked car (A244, A246, A484). Appellant also apologized, writing, I am so sorry about this, is [sic] so scared for the girl and her family. There’s nothing I can say to make her come back or make her family feel better but I am going to say this, I am sorry and I wish that I never got on that car, that I never left the house, because now for this there’s family suffering and in pain and all because of me. I’m sorry (A243-246, A259-260, A484). Defense Motion for a Trial Order of Dismissal In oral and written submissions,5 defense counsel argued that the court should not submit the murder count to the jury because the People had failed to prove the culpable mental state of depraved indifference. Counsel conceded that the evidence was sufficient to show recklessness, but said more than even “vast recklessness” was required to sustain the murder count. He argued that the People’s evidence, which showed that appellant swerved to avoid hitting pedestrians and other vehicles and 5Defense counsel made a timely motion for a trial order of dismissal at the end of the People’s case and the close of evidence, and handed up a letter, dated June 9, 2010, at that time (A364-368, A503). At sentencing, defense counsel handed up a second letter, dated June 17, 2010, stating that he renewed his motion, and the court handed down a written Decision and Order, dated July 8, 2010, denying the motion (A473, A505). Copies of the letters and the written Decision and Order are included in the Appendix (A503-507). 13 even crashed the minivan to avoid hitting anybody else after striking Kryzak, showed that he lacked the culpable mental state of depraved indifference to human life. To the contrary, counsel argued, the evidence, viewed in the light most favorable to the People, “indicate[d] that it made a difference to him whether or not he hit anybody[,] and this would be the opposite of depraved indifference” (A364-368, A503-505). The prosecutor argued that appellant’s flight from police at high speed to avoid arrest, in an area with other cars and pedestrians, repeatedly going through red lights and crossing into oncoming traffic demonstrated his depravity and indifference to human life. That appellant nearly struck a pedestrian just before the fatal collision “should have brought . . . home” to him “the dangers involved,” and his continued flight showed that his actions were “depraved and indifferent to human life.” That appellant “might have swerved on occasion” showed only that he was not suicidal, not that he cared about anyone else’s life (A365-367). The court denied the motion to dismiss (A473). In its written decision, it explained that it was relying on People v. Gomez, 65 N.Y.2d 9 (1985), in which Gomez had struck two cars, mounted the sidewalk, struck and killed a child, refused to heed his passenger’s urging him to slow down, instead accelerated, and killed another child while speeding on another sidewalk. “Similarly, in this case,” the court wrote, 14 the People established . . . that the defendant drove at speeds in excess of 70 MPH while fleeing the police in a stolen minivan, on crowded streets through a residential neighborhood filled with pedestrians and vehicular traffic, during daytime hours. Defendant drove through several steady red lights, went the wrong way down a one-way street, and did not even apply the brakes when he eventually hit the victim in the crosswalk. This conduct demonstrated a wanton disregard of human life. This court is satisfied that . . . defendant was oblivious to the consequences of his actions when he continued to drive at high speed even though he was being chased (A507). Charge and Verdict The court submitted second-degree (depraved indifference) murder to the jury (A444-447). It instructed the jury, inter alia, that [d]epraved indifference to human life refers to a person’s state of mind in recklessly engaging in conduct which creates a grave risk of death. A person has a depraved indifference to human life when that person has an utter disregard for the value of human life. A willingness to act not because he or she means to cause grievous harm to the person who is killed, but because he or she simply does not care whether or not grievous harm will result. Depraved indifference to human life reflects a wicked, evil or inhuman state of mind as manifested by brutality, latrines [sic] and a despicable act. It is evinced by a conduct that is wanton, deficient in the moral sense of concern, devoid of regard for the life or lives of others, so blame-worthy as to justify the same criminal liability that the law imposes on a person who intentionally kills (A445-446). 15 The court submitted second-degree manslaughter (A447-448) and criminally negligent homicide (A448-450) to the jury in the alternative to the murder count. It also submitted first-degree unlawful fleeing a police officer in a motor vehicle (A450- 452), and fourth-degree grand larceny (A452-454). The jury convicted appellant of murder, unlawful fleeing, and grand larceny (A468). The Appellate Division Decision In an opinion dated November 7, 2012, the Appellate Division, Second Department, affirmed the judgment, stating: Viewing the evidence in the light most favorable to the prosecution, we find that it was legally sufficient to estab- lish the defendant’s guilt of murder in the second degree beyond a reasonable doubt. Moreover, upon our indepen- dent review pursuant to C.P.L. 470.15(5), we are satisfied that the verdict of guilt with respect to that conviction was not against the weight of the evidence (A. 2). People v. Maldonado, 100 A.D.3d 657, 658 (2d Dep’t 2012) (citations omitted). Chief Judge Lippman granted appellant leave to appeal. 16 ARGUMENT THE EVIDENCE OF DEPRAVED INDIFFERENCE MURDER WAS LEGALLY INSUFFICIENT GIVEN TESTIMONY ESTABLISHING THAT APPELLANT CONSISTENTLY TRIED TO AVOID HURTING ANYONE WHILE FLEEING FROM POLICE. The depraved indifference murder statute requires a culpable mental state of depraved indifference, evincing “an utter disregard for the value of human life.” People v. Suarez, 6 N.Y.3d 202, 214 (2005). The mens rea involved is so repre- hensible that it is deemed as blameworthy as intentional conduct. Id. While the consequences of appellant’s conduct in this case were tragic, the evidence established only that he was reckless in fleeing from police, not that he acted with depraved indif- ference to human life. Accordingly, his conviction for murder rests on insufficient evidence and violates due process. See U.S. Const., Amends. V, XIV; N.Y. Const., Art 1, § 6; Jackson v. Virginia, 443 U.S. 307 (1979); In re Winship, 297 U.S. 358, 364 (1970); People v. Prindle, 16 N.Y.3d 768 (2011). A. “Depraved Indifference” The depraved indifference murder statute, P.L. § 125.25[2], provides that a person is guilty of murder in the second degree when, [u]nder circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates 17 a grave risk of death to another person, and thereby causes the death of another person. Thus, to establish depraved indifference murder under P.L. § 125.25[2], the prosecu- tion must prove that the defendant caused a death while acting with recklessness and depraved indifference to human life, the two separate mens rea elements of the crime. People v. Feingold, 7 N.Y.3d 288, 294 (2006). This Court has acknowledged that the distinction between conscious disregard of a known risk to human life, required for a second-degree manslaughter conviction (see P.L. §§ 15.05[3], 125.15), and depraved indifference to human life, required for a depraved indifference murder conviction, “can be hard to grasp.” People v. Lewie, 17 N.Y.3d 348, 358-359 (2011). A “disturbing” case involving a defendant’s “shocking behavior” might show his conscious disregard of a substantial risk to another’s life and might, in “ordinary speech,” be called “depraved.” Id. at 359. But, the Court explained, “depraved indifference to human life,” as used in the murder statute, “is something even worse”: Our cases make clear that the word “indifference” is to be taken literally: “depraved indifference is best understood as an utter disregard for the value of human life — a willingness to act . . . because one simply doesn’t care whether grievous harm results or not” [citations omitted]. In other words, a person who is depravedly indifferent is not just willing to take a grossly unreasonable risk to 18 human life — that person does not care how the risk turns out. Id. (emphasis added). The Court has also cautioned that depraved indifference “properly applies only to the unusual case,” the “small, and finite, category of cases evidencing utter depravity, uncommon brutality and inhuman cruelty.” Suarez, 6 N.Y.3d at 216. This “state of mind is found only in ‘rare cases.’” Lewie, 17 N.Y.3d at 359, quoting Suarez, 6 N.Y.3d at 218-219. Accordingly, evidence that a defendant “cared much too little” about the consequences of his conduct “cannot support a finding that [he] did not care at all.” Lewie, 17 N.Y.3d at 359. Accord, People v. Barboni, 21 N.Y.3d 393 (2013); People v. Matos, 19 N.Y.3d 470, 476 (2012); People v. Bussey, 19 N.Y.3d 231, 236 (2012); Feingold, 7 N.Y.3d at 296. See also People v. Poplis, 30 N.Y.2d 85, 88 (1972) (depraved indifference involves “the kind [of conduct] which has been rather well understood at common law to involve something more serious than recklessness alone which has had an incidental tragic result”). In Prindle, 16 N.Y.3d 768, the Court faced a challenge to a depraved indifference murder conviction in a case involving facts virtually identical to those in the case at bar. Prindle was in the process of stealing a pair of snowplows from behind a building in Brighton, New York, when police showed up. He jumped into 19 the driver’s seat of his van and sped away, leading police on a pursuit into Rochester, New York, that ended when he smashed his van into another vehicle, killing its passenger. 16 N.Y.3d at 769. Judge Pigott, in a dissent that describes circumstances virtually identical to those in this case, laid out the salient facts in detail: [The defendant] led police on a 2½-to-4-mile chase from the Town of Brighton into the City of Rochester, running at least five red lights, repeatedly driving at high speeds and in the lanes of oncoming traffic before plowing into the rear driver’s side of the victim’s vehicle. [An officer] observed the van driving “erratically, increasing in speed, weaving inside the two lanes, [and] crossing over the double solid line numerous times.” As the van approached one major intersection, it increased its speed, weaved into the left hand passing lane and barreled through a red light, causing the traffic with the right-of-way to come to a sudden stop. The van proceeded toward another major intersection near the Brighton/Rochester border. [The officer] observed the van “again driving erratically, speeding, increasing speed, going around a double solid yellow line” into oncoming traffic, nearly hitting other vehicles and causing them to swerve and/or stop. Rather than stopping, however, the van raced through another red light at that intersection — where two major thoroughfares in the City of Rochester met — at approximately 65 miles per hour. * * * 20 As the van approached an Interstate overpass, still going 65 miles per hour, defendant’s “driving became worse,” with defendant driving the van in the oncoming lane of traffic the entire time, causing vehicles with the right-of-way to make evasive maneuvers or stop. The van crossed the overpass and turned onto local streets, reaching another heavily-trafficked thoroughfare. There, the van ran a third red light and struck a truck in the intersection. The defendant nevertheless continued his flight. [The pursuing officer] described the traffic as “heavy.” [He] then observed the van, without braking, go through a fourth red light at a major intersection; he testified that the van was “driving erratically, going around cars, crossing over a double yellow solid line, causing cars to pull over.” . . . . [T]he van continued erratically at a high rate of speed through a fifth red light. [The driver of another vehicle], which had a green light, was making a left turn at this intersection. That vehicle’s driver observed the van traveling over the double solid yellow line before it slammed into the rear driver’s side door [of the victim’s vehicle]. Defendant neither braked nor skidded, and the evidence established that defendant had adequate room to navigate around the vehicle. Defendant fled the scene and was apprehended days later. 16 N.Y.3d at 771-773. The Prindle Court held that, even under the pre-Feingold view of depraved indifference set forth in People v. Register, 60 N.Y.2d 270 (1983), the evidence adduced at trial did not support the jury’s conclusion that the defendant evinced a 21 depraved indifference to human life. 16 N.Y.3d at 771. Accordingly, it reduced Prindle’s conviction to second-degree manslaughter. 16 N.Y.3d at 769. In Prindle, the Court contrasted Prindle’s facts with those in People v. Gomez, 65 N.Y.2d 9 (1985). Gomez had continued to accelerate after striking two cars on 10th Avenue in Manhattan, drove onto and along a sidewalk, killing one child, and refused to apply his brakes when told to do so by a passenger because he had “killed a person already.” He then accelerated further and mounted the opposite sidewalk, where he struck, dragged for some distance, and killed another child. He continued on, nearly striking several other people on a third sidewalk, and finally braked before trying to escape. 65 N.Y.2d at 10. That Gomez killed two children, having jumped the curb and refused to brake, evinced a depraved indifference to human life not present in Prindle. B. The Insufficient Proof of Depraved Indifference Murder There is not an iota of material difference between the facts in Prindle and those in the case at bar. Appellant, just like Prindle, fled from police at high speed through business and residential streets in heavy traffic to escape arrest for stealing property, wove in and out of traffic and into oncoming lanes, went through red lights, and almost caused an accident just before the fatal collision. Since the facts in this 22 case are indistinguishable from those in Prindle, they compel the same conclusion. Just as the proof was insufficient to sustain Prindle’s depraved indifference murder conviction, the proof here cannot sustain appellant’s conviction. Furthermore, the evidence here affirmatively established a lack of depraved indifference to human life. Indeed, the testimony of multiple police and civilian witnesses compellingly established that appellant was not indifferent to whether anyone lived or died. The People’s witnesses repeatedly testified that, throughout the pursuit, appellant not only repeatedly swerved the minivan in and out of traffic, but also that he did so specifically to avoid striking other vehicles and pedestrians. First, Officer Truglio and Lieutenant Roy testified about appellant’s driving through heavy traffic during the first several blocks of the pursuit on Manhattan Avenue. According to Truglio, appellant “swerv[ed] in and out” of traffic and crossed double yellow lines so he could “keep proceeding” and “avoid traffic” (A101- 102). And Roy testified that appellant was “eluding” and “going in and out” of the traffic in which the officers were “stuck” (A194). This testimony was also consistent with John Combs’s, that appellant moved into the southbound lane when traffic built up near 745 Manhattan Avenue (A314-315, A320). The officers’ testimony also established that, farther north on the avenue, at Milton Street, appellant took evasive action to avoid striking a woman who was 23 crossing the street as she backed away. Truglio testified that appellant “proceeded around” the woman (A124). He also acknowledged having testified in the grand jury that, had appellant continued without changing his course, he would have struck the woman, but “[i]nstead he swerved his car and went around her” (A124-125). Roy similarly testified at trial that, as the woman “went back toward the sidewalk,” appellant “made an adjustment back into the yellow lane [sic]” (A189-190). The People’s proof also showed that appellant was trying to avoid an accident at the moment of the fatal impact at Manhattan Avenue and India Street. According to Trznadel Marcin, appellant “swerve[d] in between the cars” that were stopped at the intersection just before he struck Kryzak (A73). And Elizabeth Nassoor testified that, as appellant approached the intersection, he “swerved” into the southbound lane, then “swerved” back into the northbound lane so as “not to hit an oncoming car,” but struck Kryzak when he re-entered the northbound lane (A57-58). Finally, a few blocks farther north of India Street, at Manhattan Avenue and Dupont Street, James Helmbold saw appellant “swerving around traffic” to proceed northbound before “swerv[ing] to his left to avoid” Helmbold’s vehicle and crashing into some parked vehicles there (A333-334). All this testimony shows that, throughout the pursuit — before, at the moment of, and after the fatal impact at Manhattan Avenue and India Street — appellant 24 consistently swerved in and out of traffic to avoid other vehicles and pedestrians, just as Prindle had. Viewed in the light most favorable to the People, this evidence was insufficient to show that appellant was so uncaring as to whether anyone lived or died as to make him depravedly indifferent. Lewie, 17 N.Y.3d at 359; Poplis, 30 N.Y.2d at 88. The trial court’s reliance on Gomez in concluding otherwise (A507) was misplaced. As this Court made clear in Prindle, 16 N.Y.3d at 771, the facts in Gomez are qualitatively different from cases like Prindle and the instant case. Unlike appellant, Gomez showed a clear lack of regard for whether he killed anyone. Gomez “careened” off a parked car on 10th Avenue in Manhattan, struck a moving vehicle as he wove from lane to lane up 10th Avenue, mounted a sidewalk, drove along it, and struck and killed a boy riding a bicycle. At that point, his passenger explicitly warned Gomez to apply the brakes. Nevertheless, Gomez refused to brake because he had “killed a person already.” Instead, he accelerated further; mounted the opposite sidewalk, where several people were standing; and drove along it, striking and killing another child riding a bicycle and dragging his body approximately 80 feet. He then sped across another street, mounted a third sidewalk, and sped along it at over 50 m.p.h., nearly striking several other people. 65 N.Y.2d at 10-11. It was Gomez’s “wanton and callous manner” and “callous indifference” to the risks he 25 created — as exemplified in particular by his comment that he could not stop because he had already killed someone — that led this Court to find that Gomez was one of those rare cases in which depraved indifference murder was established. 65 N.Y.2d at 12. In stark contrast to Gomez’s utter disregard for anyone else’s life or safety, appellant repeatedly swerved and wove in and out of traffic on Manhattan Avenue to avoid striking any vehicles or pedestrians. Moreover at no point did appellant give any indication, by statement or conduct, that he was similarly callous and uncaring about anyone else’s life or death. To the contrary, that he repeatedly strove to avoid anyone in his path demonstrated that he did care whether he harmed anyone.6 In their brief to the Appellate Division, the People made several attempts to distinguish this case from Prindle and show that appellant had a depravedly indifferent mens rea, but these are all without merit. 6It is further notable that appellant’s statements to police were completely consistent with the People’s proof that he repeatedly swerved the minivan to avoid hitting anyone: he said that, to avoid striking anyone during the pursuit, he was “just swerving” and “ducking cars,” and wove “in and out of the cars, swerving”; he “tried to swerve” around Kryzak; and when there were “more people in traffic,” he crashed into a parked car to avoid hitting anybody else (A243-246, A484, A490-492, A500). Also unlike Gomez, appellant apologized, saying how sorry he was for all the pain and suffering he caused Kryzak’s family (A243-246, A259-260, A484). 26 The People first suggested that appellant’s admission that he looked in the rear- view mirror at one point to see if police were still behind him showed that his “sole concern” was escaping from them and thus that he did not care whether Kryzak lived or died. That argument misreads the record to suggest that appellant was unconcerned about watching where he was going. The record shows that, despite a momentary glimpse in the mirror, appellant paid attention to vehicular and pedestrian traffic in front of him, repeatedly swerving to avoid accidents. Given appellant’s speed, his glimpse at the mirror might have been reckless, but it fell far short of demonstrating depraved indifference to whether a pedestrian lived or died. See Poplis, 30 N.Y.2d at 88 (depraved indifference murder “requires more than recklessly causing death which could happen, for example, from gross carelessness in motor vehicle operation”). Similarly without merit is the People’s suggestion that appellant’s unfamiliarity with the vehicle showed depraved indifference to human life. There was no evidence of anything unusual or unique about the minivan’s braking, steering, or other operating systems that would have made it inherently dangerous to an unfamiliar driver. Depraved indifference requires not merely dangerous or grossly careless driving, Lewie, 17 N.Y.3d at 359; Poplis, 30 N.Y.2d at 88, but evidence that the defendant was aware of the “grossly unreasonable risk to human life” being created 27 and deliberately chose to continue on that path, “not car[ing] how the risk turn[ed] out.” Lewie, 17 N.Y.3d at 359. Nothing about the minivan shed any light on appellant’s mental state, much less showed that he did not care whether anyone lived or died.7 Appellant’s having almost struck another pedestrian before the fatal impact does not make him somehow more culpable than Prindle, who actually collided with a truck, then continued his high-speed flight, until he had a second, fatal collision (see Prindle, 16 N.Y.3d at 772-773). If Prindle’s prior collision failed to provide sufficient warning to render him depravedly indifferent to human life, appellant’s success in avoiding an accident obviously cannot have done so. The People also suggested that appellant drove faster than Prindle. But speed alone is not dispositive. Prindle’s driving was incredibly reckless, fast, and danger- ous: he repeatedly drove erratically at high speeds; ran red lights; increased his speed; and crossed double yellow lines into oncoming traffic, causing other drivers to make evasive maneuvers (see Prindle, 16 N.Y.3d at 771-773). Doubtless, appellant also drove far too fast for safety. But Prindle’s driving was no less dangerous than 7Appellant’s unfamiliarity with the area similarly failed to show that he was depravedly indifferent to whether anyone lived or died (see Lewie, 17 N.Y.3d at 359). Nor does the fact that the accident occurred in mid-afternoon distinguish this case from Prindle, where the streets were likewise crowded and busy with “heavy” traffic (see Prindle, 16 N.Y.3d at 772). 28 appellant’s. Appellant’s speed and other driving violations were, like Prindle’s, reckless, but no more: they did not show a lack of care as to whether someone lived or died. See Lewie, 17 N.Y.3d at 359. Thus, the evidence here fell far short of that necessary to prove that appellant was depravedly indifferent to human life. As defense counsel correctly argued below, the evidence as to appellant’s driving “indicate[d that] it made a difference to him whether or not he hit anybody[,] and this would be the opposite of depraved indifference” (A364-368, A503-505). While the evidence showed that appellant was reckless, it did not show that he was reckless and uncaring as to whether anyone lived or died, and therefore did not show that he was depravedly indifferent to that risk. See Lewie, 17 N.Y.3d at 359; Poplis, 30 N.Y.2d at 88. Indeed, the insufficiency of the evidence would be clear even were the Court to view it under the pre-Feingold standard set forth in Register, as did the Court in Prindle and Gomez. Viewing depraved indifference as a mens rea under the Feingold standard, as the Court must given the post-Feingold law and the charge appellant’s jury was given, the People’s failure to prove depraved indifference is even clearer. Throughout the incident, appellant drove in a manner indicating that he strove to avoid striking any other vehicles or pedestrians. Appellant’s expressions of remorse 29 to police right after the incident further showed that, while he might have been reckless, he was not uncaring: I am so sorry about this, . . . so scared for the girl and her family. There’s nothing I can say to make her come back or make her family feel better but I am going to say this, I am sorry and I wish that I never got on that car, that I never left the house, because now for this there’s family suffering and in pain and all because of me. I’m sorry (A243-246, A259-260, A484). See Lewie, 17 N.Y.3d at 359 (evidence that a defendant “cared much too little” about the consequences of his conduct “cannot support a finding that [he] did not care at all”). In short, appellant’s behavior was unquestionably reckless and had terrible consequences, but the evidence did not establish that he “willing[ly]” engaged in conduct creating a grave risk of death, Lewie, 17 N.Y.3d at 359, because he simply did not “care whether grievous harm result[ed] or not.” Feingold, 7 N.Y.3d at 296. This is not one of those “rare” cases reflecting a depraved indifference state of mind. * * * The legal sufficiency issue was preserved by defense counsel’s specific motions to dismiss the murder charge for the People’s failure to prove the culpable mental state of depraved indifference, particularly given the evidence that appellant swerved the minivan to avoid hitting people and vehicles, and that he intentionally 30 crashed after striking Kryzak to avoid hitting anyone else, showing that “it made a difference” to him whether he hit anybody (A364-368, A473, A503-505). The court’s specific ruling also preserved the issue (A367-369, A473, A506-507). See C.P.L. § 470.05[2]. In conclusion, even when viewed in the light most favorable to the prosecution, the evidence failed to prove depraved indifference beyond a reasonable doubt, as required to sustain appellant’s murder conviction. Accordingly, this Court should reduce that conviction to second-degree manslaughter and remand for resentencing on that count. See Bussey, 19 N.Y.3d at 236; Prindle, 16 N.Y.3d at 769; Feingold, 7 A.D.3d at 289; People v. Jean-Baptiste, 44 A.D.3d 792, 793 (2d Dep’t 2007), aff’d, 11 N.Y.3d 539 (2008); People v. Atkinson, 7 N.Y.3d 765 (2006). 31 CONCLUSION FOR THE REASONS STATED ABOVE, THIS COURT SHOULD MODIFY APPELLANT’S MURDER CON- VICTION BY REDUCING IT TO MANSLAUGHTER IN THE SECOND DEGREE AND REMANDING THE CASE FOR SENTENCING ON THAT CONVICTION. Respectfully submitted, _____________________________ LYNN W. L. FAHEY Attorney for Defendant-Respondent _____________________________ JOSHUA M. LEVINE Of Counsel Dated: New York, New York October 4, 2013 32