The People, Respondent,v.Jose Maldonado, Appellant.

Brief

N.Y.June 4, 2014

To be argued by JOSHUA M. LEVINE (20 Minutes) Court of Appeals STATE OF NEW YORK PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - JOSE MALDONADO, Defendant-Appellant. REPLY 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 January 8, 2014 TABLE OF CONTENTS ARGUMENT THE PEOPLE CONFLATE DEPRAVED INDIFFERENCE WITH RECKLESSNESS, DRAW AN ILLEGITIMATE INFERENCE THAT APPELLANT’S DESIRE TO ESCAPE POLICE MADE HIM DEPRAVEDLY INDIFFERENT TO OTHERS’ LIVES, AND RELY ON INAPPOSITE, DISTINGUISHABLE CASE LAW. . . . . . . . . . . . . . 1 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 TABLE OF AUTHORITIES People v. Alvarado, 71 A.D.3d 498 (1st Dep’t 2010).. . . . . . . . . . . . . . . . . . . . 7-8 People v. Feingold, 7 N.Y.3d 288 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 6 People v. Gomez, 65 N.Y.2d 9 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-7 People v. Heidgen, 2013 N.Y. Slip Op. 07757, 2013 WL 6096138 (Nov. 21, 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-6 People v. Mooney, 62 A.D.3d 725 (2d Dep’t 2009). . . . . . . . . . . . . . . . . . . . . . 7-8 People v. Prindle, 16 N.Y.3d 768 (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . passim People v. Richins, 29 A.D.3d 1170 (3d Dep’t 2006). . . . . . . . . . . . . . . . . . . . . . 7 People v. Suarez, 6 N.Y.3d 202 (2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-3 People v. Wells, 53 A.D.3d 181 (1st Dep’t 2008).. . . . . . . . . . . . . . . . . . . . . . . 6-7 COURT OF APPEALS STATE OF NEW YORK -------------------------------------------------------------X : THE PEOPLE OF THE STATE OF NEW YORK, : : Respondent, : : - against - : : JOSE MALDONADO, : : Defendant-Appellant. : : -------------------------------------------------------------X REPLY BRIEF FOR DEFENDANT-APPELLANT ARGUMENT THE PEOPLE CONFLAT E DEPRAVED INDIFFERENCE WITH RECKLESSNESS, DRAW AN ILLEGITIMATE INFERENCE THAT APPELLANT’S DESIRE TO ESCAPE POLICE MADE HIM DEPRAVEDLY INDIFFERENT TO OTHERS’ LIVES, AND RELY ON INAPPOSITE, DISTINGUISHABLE CASE LAW. In attempting to justify the depraved indifference murder conviction in this case, the People emphasize facts that demonstrate recklessness, incorrectly asserting that they prove depraved indifference to human life, as well. In addition, completely disregarding the import of appellant’s acting to avoid other vehicles and pedestrians, they make a meritless assertion that the jury could have inferred depraved indiffer- ence based merely on his desire to escape from police. Finally, they rely on cases that are distinguishable from this case on the facts and are almost all intermediate appellate court cases that pre-date this Court’s decision in People v. Prindle, 16 N.Y.3d 768 (2011), if not People v. Feingold, 7 N.Y.3d 288 (2006). This Court should reject the People’s meritless arguments. One theme of the People’s brief is to conflate the concepts of recklessness and depraved indifference to human life. The People repeatedly point to the danger appellant created as evincing depraved indifference: for example, that his swerving into the northbound traffic lanes “significantly increased the risks to southbound motorists” and “certainly increased the risks to pedestrians” stepping into the street, or that his checking the rear-view mirror meant that he must have taken his eyes off the road ahead (Respondent’s Brief at 31-33). But while such risk creation may support a finding of recklessness, it simply does not, as the People claim, establish that appellant acted with depraved indifference. This Court has made clear that the degree of risk one’s conduct creates may help establish recklessness, but not depraved indifference. Recklessness and depraved indifference to human life, the Court has emphasized, are different mens rea elements that should not be conflated or confused with each other: Reckless homicide cannot be elevated into depraved indifference murder merely because the actions of the defendant created a risk of death, however grave or 2 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]ir- cumstances evincing a depraved indifference to human life” are not established by recklessness coupled only with actions that carry even an inevitable risk of death. People v. Suarez, 6 N.Y.3d 202, 213-214 (2005) (underlined text emphasized; italicized text emphasized in original). Depraved indifference, therefore, is not merely a greater degree of recklessness, as the People’s arguments suggest. Rather, as the Suarez Court made clear, “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.” Id. at 214. The Court suggested, as a “quintessential exam- ple[],” driving along a crowded sidewalk at high speed. Id., citing People v. Gomez, 65 N.Y.2d 9 (1985). As explained in appellant’s main brief at pp. 25-26, however, the facts in this case are starkly different from those in Gomez. Unlike Gomez, appellant repeatedly swerved to avoid striking any vehicles or pedestrians. Moreover, also unlike Gomez, at no point did appellant give any indication, by statement or conduct, that he was 3 callous and uncaring about anyone else’s life or death. Just as this Court made clear that the facts in Prindle were qualitatively different from those in Gomez, see Prindle, 16 N.Y.3d at 771, the facts in this case are qualitatively different because there was no evidence of depraved indifference. The People’s attempts to distinguish this case from Prindle (Respondent’s Brief at 41-47) fail because the minor, non-material differences between the facts in the two cases suggest, at most, a difference in degree of recklessness; they do not establish that appellant was depravedly indifferent to human life. The People also unfairly minimize the danger of Prindle’s driving (Respondent’s Brief at 41-42, 44- 45).1 The People quote this Court in People v. Heidgen, 2013 N.Y. Slip Op. 07757, 2013 WL 6096138 (Nov. 21, 2013), to suggest that appellant’s driving “amounted to a ‘high speed game of chicken’” comparable to Heidgen’s (Respondent’s Brief at 39- 41). The cases are, however, nothing alike. The Heidgen Court found that the jury could reasonably have concluded that Heidgen was “unhappy and self-destructive” when he drove at high speed for more than two miles in the wrong direction on the Meadowbrook Parkway in Long Island. “Perhaps most significantly,” the Court 1Appellant anticipated and answered each of the People’s assertions about appellant’s driving, as well as their assertion that Prindle was driving less fast or recklessly, in appellant’s main brief at pp. 27-29. 4 found, Heidgen appeared to “follow” or “track” the headlights of oncoming vehicles. It was this conduct — “a high speed game of chicken” — that evinced the complete disregard for the value of the lives of others necessary to a finding that Heidgen committed depraved indifference murder. 2013 N.Y. Slip Op. 07757 at *10-*11. Appellant’s conduct was completely different from Heidgen’s. There was no evidence that he was “unhappy and self-destructive” or that he drove on the wrong side of the street for any comparable length of time. Most significantly, he did not “follow” or “track” any other vehicles; to the contrary, he repeatedly swerved to avoid other drivers. Heidgen’s and appellant’s cases are not merely distinguishable on these facts; they are diametrically opposed to each other. This Court’s upholding of Heidgen’s depraved indifference murder conviction in no way supports appellant’s depraved indifference murder conviction. In an effort to blunt the significance of appellant’s repeated efforts to avoid colliding with vehicles and pedestrians, the People argue that his “sole aim” and “single-minded purpose” was the “self-interest[ed]” one of avoiding arrest (Respon- dent’s Brief at 29, 33-34, 36-38). But that, as in Prindle, appellant was trying to avoid being captured by the police is irrelevant to whether he was doing so with depraved indifference to human life. The record is devoid of the hallmark signs of depraved indifference present in Gomez and Heidgen: refusing to brake because he 5 had “killed a person already,” mounting a sidewalk full of pedestrians, or playing a “high speed game of chicken.” Because Prindle and appellant fled police in a reck- less manner that did not include circumstances evincing a depravedly indifferent state of mind, neither defendant could properly be convicted of depraved indifference murder. Finally, all the Appellate Division cases on which the People rely (Respondent’s Brief at 39-41, 48-51) pre-date this Court’s decision in Prindle, if not Feingold, and were untested by review in this Court. They are all, in any event, distinguishable on their facts. The People suggest that this case is similar to People v. Richins, 29 A.D.3d 1170 (3d Dep’t 2006), and People v. Wells, 53 A.D.3d 181 (1st Dep’t 2008) (Respondent’s Brief at 48-50). Richins was a pre-Feingold case that involved a high- speed police pursuit of the defendant’s vehicle. The defendant failed to preserve his legal sufficiency claim as to first-degree reckless endangerment, and the Appellate Division declined to review it in the interest of justice. It also ruled that the verdict was not against the weight of the evidence. 29 A.D.3d at 1171-1172. Given these facts, Richins is of no instructive value. Wells was a pre-Prindle depraved indifference murder case that involved a defendant who, while barely conscious due to intoxication and with a blood-alcohol 6 level close to three times the legal limit, ran a red light at high speed and caused a fatal collision in an intersection. Prior to the fatal collision, Wells had gone “flying” through several other red lights and struck a parked car, and had made “no effort” to avoid striking other vehicles. 53 A.D.3d at 189-190. These facts make Wells much more akin to Gomez than to Prindle or the instant case, in which appellant repeatedly avoided other vehicles and pedestrians. The People’s reliance on the pre-Prindle cases of People v. Alvarado, 71 A.D.3d 498 (1st Dep’t 2010), and People v. Mooney, 62 A.D.3d 725 (2d Dep’t 2009) (Respondent’s Brief at 50-51), is similarly misplaced. There are very few facts cited in Alvarado, a first-degree reckless endangerment case. All we can glean from the decision is that the defendant, the fleeing driver of a stolen car who struck a police officer, engaged in a “pattern of egregious conduct in this lengthy car chase.” These sparse facts are hardly instructive. Mooney involved a legal sufficiency challenge to first-degree reckless endangerment and assault. During a pursuit, the intoxicated defendant turned off his headlights before speeding around a curve and collided head-on with a police car, causing injuries to the officer driving the police car and a passenger in his own vehicle. The Appellate Division found the legal sufficiency challenge unpreserved and ruled that the verdict was not against the weight of the evidence. The facts in 7 Mooney are not comparable with those in the instant case, in which appellant repeatedly swerved to avoid other vehicles and pedestrians. Instead of Alvarado and Mooney, Prindle, a case with comparable facts that has benefitted from this Court’s review, should guide the Court’s determination. CONCLUSION FOR THE REASONS STATED IN THIS AND APPELLANT’S MAIN BRIEF, THIS COURT SHOULD MODIFY APPELLANT’S MURDER CONVICTION 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-Appellant _____________________________ JOSHUA M. LEVINE Of Counsel Dated: New York, New York January 8, 2014 8