The People, Respondent,v.Franklin McPherson, Appellant.BriefN.Y.October 8, 2013To be argued by: JONATHAN I. EDELSTEIN Time Requested: 15 Minutes Second Dep't Case No. 2008-08975 Nassau County Indictment No. 186/08 NEW YORK STATE COURT OF APPEALS - - - - - - - - - - - - - - - - - - - - - - THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - FRANKLIN McPHERSON, Defendant-Appellant. BRIEF FOR DEFENDANT-APPELLANT JONATHAN I. EDELSTEIN JASON RICHARDS, ESQ. EDELSTEIN & GROSSMAN NASSAU COUNTY DIST. ATTY. Attorney for Defendant-Appellant Attorney for Respondent 271 Madison Avenue, 20th Floor 262 Old Country Road New York, NY 10016 Mineola, NY 11501 (212) 871-0571 (516) 571-3800 ____________________________________________________________________________________________ PRINTED ON RECYCLED PAPER -i- TABLE OF CONTENTS Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv Jurisdictional Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Questions Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Nature of the Case and Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 A. Defendant Goes to the Island Rock Club . . . . . . . . . . . . . . . . . . . . . . 3 B. Defendant Drives the Wrong Way on the Southern State Parkway . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 C. The Accident . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 D. Defendant’s Arrest and the Search of the Vehicle . . . . . . . . . . . . . . . 8 E. Leslie Burgess is Identified as the Victim . . . . . . . . . . . . . . . . . . . . . 9 F. The Effect of Alcohol on Defendant's Ability to Drive and Perceive Risks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 G. Defense Counsel Fails to Make a Feingold Motion Despite his Awareness of the Issue . . . . . . . . . . . . . . . . . . . . . . . . . 11 H. The Verdict and Sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 I. Appeal to the Second Department . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 -ii- POINT I DEFENDANT’S TRIAL COUNSEL WAS INEFFECTIVE FOR NOT MOVING TO DISMISS THE DEPRAVED INDIFFERENCE MURDER CHARGE ON FEINGOLD GROUNDS (U.S. CONST. AMEND. V, VI, XIV) . . . . . . . . . . . . . . . . . 21 A. Where the Law is In Flux, Effective Assistance of Counsel Necessarily Includes Preservation of All Strong Issues, Even if Not Totally Clear-Cut . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 B. A Motion to Dismiss on Feingold Grounds Would Have Been Meritorious . . . . . . . . . . . . . . . . . . . . . . . 30 1. The Valencia and Prindle Holdings . . . . . . . . . . 30 2. The Second Department's Attempt to Distinguish Valencia and Prindle, and its Reliance on Wells, Lack Merit . . . . . . . . . . . 33 3. Under Valencia and Prindle, Defendant Lacked a Depraved Mental State . . . . . . . . . . . . 36 4. There Was No Grave Risk of Death . . . . . . . . . 45 5. Other Automobile-Related Depraved Indifference Cases Require Proof of Risk and Depravity Not Present Here . . . . . . . . 50 6. The Depraved Indifference Murder Conviction is Inconsistent with the New York Statutory Scheme . . . . . . . . . . . . . . . 58 C. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 -iii- POINT II DEFENDANT’S TRIAL COUNSEL WAS OTHERWISE INEFFECTIVE (U.S. CONST. AMEND. V, VI, XIV) . . . . . . . . . . . . . . . 63 POINT III THE EVIDENCE OF DEPRAVED INDIFFERENCE MURDER AND SECOND-DEGREE WEAPON POSSESSION WAS LEGALLY INSUFFICIENT (U.S. CONST. AMEND. V, XIV) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77 -iv- TABLE OF AUTHORITIES Cases: Arbegast v. Board of Educ., 65 N.Y.2d 161 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 Buffalo Retired Teachers 91-94 Alliance v. Buffalo Board of Educ., 261 A.D.2d 824 (4th Dept. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 Claudio v. Scully, 982 F.2d 798 (2d Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28n Gutierrez v. Smith, 692 F.3d 256 (2d Cir. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Henry v. Poole, 409 F.3d 48 (2d Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Jackson v Virginia, 443 U.S. 307 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Jelinek v. Costello, 247 F. Supp. 2d 212 (E.D.N.Y. 2003) . . . . . . . . . . . . . . . . . . . . . 28n,65,65n Kyles v. Whitley, 514 U.S. 419 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22,22n Lockhart v. Fretwell, 506 U.S. 364 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Mayo v. Henderson, 13 F.3d 528 (2d Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28n People v. Alvarado, 71 A.D.3d 498 (1st Dept. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 -v- People v. Baldi, 54 N.Y.2d 137 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim People v. Barbaran, 118 A.D.2d 578 (2d Dept. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 People v. Carter, 7 N.Y.3d 875 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24,25,29 People v. Cleague, 22 N.Y.2d 363 (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 People v. Coon, 34 A.D.3d 869 (3d Dept. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 People v. Donovan, 184 A.D.2d 654 (2d Dept. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29,66 People v. Droz, 39 N.Y.2d 457 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 People v. Ennis, 11 N.Y.3d 403 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24,25,29 People v. Esposito, 216 A.D.2d 317 (2d Dept. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 People v. Feingold, 7 N.Y.3d 288 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim People v. Ficarrota, 91 N.Y.2d 244 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 People v. Florance, 58 A.D.3d 887 (3d Dept. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 -vi- People v. Ford, 66 N.Y.2d 428 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73,76 People v. Fountain, 44 A.D.2d 685 (2d Dept. 1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57,57n People v. France, 57 A.D.2d 432 (1st Dept. 1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . 56,57,57n People v. Garrow, 904 N.Y.S.2d 589 (3d Dept. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 People v. Gil, 285 A.D.2d 7 (1st Dept. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29,66 People v. Gomez, 65 N.Y.2d 9 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51,52,57 People v. Goldstein, 12 N.Y.3d 295 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52,57 People v. Gonzalez, 1 N.Y.3d 464 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 People v. Gordon, 34 A.D.3d 316 (1st Dept. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27,56 People v. Gray, 86 N.Y.2d 10 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,2n,67,70,71 People v. Gutierrez, 57 A.D.3d 1006 (2d Dept. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 People v. Hafeez, 100 N.Y.2d 253 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 -vii- People v. Hoyte, 185 Misc.2d 587 (Sup. Ct., Bronx Co. 2000), aff’d, 294 A.D.2d 263 (1st Dept. 2001) . . . . . . . . . . . . . . . . . . . . . . . . 64,65 People v. Karpowski, 99 A.D.2d 118 (1st Dept. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74 People v. Keating, 18 N.Y.3d 932 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28n People v. Keating, 283 A.D.2d 589 (2d Dept. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 People v. Lazartes, 23 A.D.3d 400 (2d Dept. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54,55,57 People v. Legendre, 134 A.D.2d 525 (2d Dept. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 People v. Montanez, 41 N.Y.2d 53 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73,74 People v. McInnis, 179 A.D.2d 781 (2d Dept. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76 People v. Mooney, 62 A.D.3d 725 (2d Dept. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 People v. Moore, 291 A.D.2d 336 (1st Dept. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73,76 People v. Murray, 300 A.D.2d 819 (3d Dept. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 People v. Miller, 11 A.D.3d 729 (3d Dept. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 -viii- People v. Pacheco, 50 A.D.3d 1063 (2d Dept. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65,66 People v. Peryea, 2006 N.Y. Misc. LEXIS 4137 (Clinton Co. Ct. 2006) . . . . . 27,55,56,56n,57 People v. Prindle, 16 N.Y.3d 768 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30,32,33,35, . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44,50,57 People v. Prindle, 63 A.D.3d 1597 (4th Dept. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . People v. Register, 60 N.Y.2d 270 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45,45n,57n People v. Richins, 29 A.D.3d 1170 (3d Dept. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 People v. Robinson, 95 N.Y.2d 179 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 People v. Ryan, 82 N.Y.2d 497 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 People v. Sanchez, 98 N.Y.2d 373 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 People v. Schulz, 4 N.Y.3d 521 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 People v. Stevens, 76 N.Y.2d 833 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 People v. Stultz, 2 N.Y.3d 277 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 -ix- People v. Suarez, 6 N.Y.3d 202 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 People v. Thacker, 166 A.D.2d 102 (1st Dept. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 People v. Turner, 5 N.Y.3d 476 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25,29,65 People v. Valencia, 14 N.Y.3d 927 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim People v. Valencia, 58 A.D.3d 879 (2d Dept. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim People v. Vilardi, 76 N.Y.2d 67 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 People v. Walton, 70 A.D.3d 871 (2d Dept. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52,53n People v. Wells, 53 A.D.3d 181 (1st Dept. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . 16,19,35,36, . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53,53n People v. Wimes, 49 A.D.3d 1286 (4th Dept. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 People v. Yeong Sook Shin, 61 A.D.3d 568 (1st Dept. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 Rosario v. Ercole, 617 F.3d 683 (2d Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22n Rosario v. Ercole, 601 F.3d 118 (2d Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 -x- Sommers v. Sommers, 203 A.D.2d 975 (4th Dept. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 Strickland v. Washington, 466 U.S. 668 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim United States v. Allen, 127 F.3d 260 (2d Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 United States v. Basley, 357 Fed. Appx. 455 (3d Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69n United States v. Brothman, 191 F.2d 70 (2d Cir.1951) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 United States v. Cox, 593 F.2d 46 (6th Cir.1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 United States v. Gjurashaj, 706 F.2d 395 (2d Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,2n,68,69, . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69n,70,71 United States v. Glenn, 312 F.3d 58 (2d Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77 United States v. Hoy, 137 F.3d 726 (2d Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 United States v. Hawkins, 547 F.3d 66 (2d Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77 United States v. Jones, 174 F.2d 746 (7th Cir.1949) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 United States v. South, 28 F.3d 619 (7th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69n -xi- Weissman v. Bellacosa, 129 A.D.2d 189 (2d Dept. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 Wong Sun v. United States, 371 U.S. 471 (1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Statutes: N.Y. Const. art. VI, § 3(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 CPL § 450.90 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 CPL § 460.20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 CPL § 470.05 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 PL § 120.03 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 PL § 120.04 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 PL § 120.04-a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 PL § 125.13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 PL § 125.14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59,59n PL § 120.03 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 PL § 125.25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 PL § 265.03 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 PL § 265.15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 VTL § 1225-c . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49n -xii- 28 U.S.C. § 2254 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1n Fed. R. Crim. Pro. 29 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 L. 2006, c. 732, § 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 L.2006, c. 736, § 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 L.2007, c. 345 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 L. 2009, c. 496, §§ 7-10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 Other Authorities: Bill Jacket, L.2007, c.345 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61,62,62n Reuven Fenton et. al., Crash Mom was Fully 'Loaded', N.Y. Post, Aug. 5, 2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 Stephen P. Garvey, What’s Wrong with Involuntary Manslaughter?, 85 Tex. L. Rev. 333 (2006) . . . . . . . . . . . . . . . . . . . . 49n,50 Ann Givens, Rice asks state for ways to prevent wrong-way driving, Newsday, Nov. 22, 2010 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42,43 Ann Givens, Rice seeks DOT meeting on wrong-way crashes, Newsday, Jan. 4, 2011 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Scott H. Greenfield, Court Rejects Drunken Depraved Indifference, Simple Justice, Feb. 4, 2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 Ryan J. Mahoney, Note: Depraved Indifference Murder in the Context of DWI Homicides in New York, 82 St. John's L. Rev. 1537 (2008) . . . . . . . . . . . . . . . . . . . . . . . 37,38,39,58 Montana Department of Transportation, BAC and You . . . . . . . . . . . . . . . . . . . 47 -xiii- 8A Moore's Federal Practice 29.03[1], at 29-7 (2d ed. 1982) . . . . . . . . . . . . . . . 68 NHTSA, Fatality Analysis Reporting System (2008) . . . . . . . . . . . . . . . . . . . . . . 46 Oregon Dep’t of Transportation, Traffic Injuries per 100 Million Vehicle Miles Traveled (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47n States News Service, AIA Supports Michigan Ban on Texting while Driving, Apr. 29, 2010 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 U.S. Dep't of Transportation, Bureau of Transportation Statistics Table 2:18 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 1 Justice Belen’s order purports to grant leave to appeal “to the extent that the following question is certified to the Court of Appeals: Was so much of the decision and order of this Court dated November 1, 2011, as, in affirming the judgment of the County Court, Nassau County, rendered September 16, 2008, determined that the defendant was not deprived of the effective assistance of counsel, properly made?” and otherwise to deny leave. (A.1). Defendant submits, however, that there is neither precedent nor authority for a limited grant of leave to appeal. New York has not adopted the “certificate of appealability” procedure applicable to Federal habeas petitions under 28 U.S.C. § 2254, in which appealability is weighed on an issue-by- issue basis, and research does not reveal any past cases in which this Court has granted leave on some but not all issues raised before the Appellate Division. Defendant thus takes the position that he may raise before this Court all cognizable issues that were raised below, and indeed, that he must do so in order to exhaust them for purposes of a potential habeas challenge should such a challenge become necessary. In the alternative, assuming arguendo that there is authority for a limited grant of leave to appeal, defendant respectfully requests that this Court expand the grant of leave to -1- JURISDICTIONAL STATEMENT Defendant-appellant Franklin McPherson appeals by permission, pursuant to CPL §§ 450.90 and 460.20, from an order of the Appellate Division, Second Department dated November 1, 2011, which in pertinent part, affirmed his convictions of depraved indifference murder and criminal possession of a weapon in the second degree. There were no co-defendants in the underlying trial and there is no related litigation currently pending in this or any other Court. This Court has jurisdiction because the Second Department’s decision constituted a final disposition of the case, and because leave to appeal was granted by the Hon. Ariel Belen of the Appellate Division on June 20, 2012.1 This appeal raises include all issues raised in this brief. 2 Defendant further submits that, at minimum, this Court has jurisdiction to decide the threshold issue of whether Gray or Gjurashaj states the governing rule with respect to when a sufficiency issue is preserved. -2- issues of ineffective assistance of trial counsel, over which this Court has jurisdiction because preservation at trial is not required, and issues of legal sufficiency, which defendant acknowledges are unpreserved but which he contends are cognizable based on his argument that this Court should overrule People v. Gray, 86 N.Y.2d 10 (1995) and instead adopt the Federal rule in United States v. Gjurashaj, 706 F.2d 395 (2d Cir. 1999).2 STATEMENT OF QUESTIONS PRESENTED 1. Did defendant’s trial counsel provide ineffective assistance by not moving to dismiss the depraved indifference murder charge on Feingold grounds? 2. Was defendant’s trial counsel otherwise ineffective? 3. Were defendant’s depraved indifference murder and weapon possession convictions supported by legally insufficient evidence? Appellant submits that the answer to the above questions is "yes." NATURE OF THE CASE AND STATEMENT OF FACTS The instant case arises out of a tragic vehicular accident that resulted in the death of Leslie Burgess. In the early morning hours of October 19, 2007, defendant Franklin -3- McPherson, who had become intoxicated at the Island Rock Club in Hempstead, entered the Southern State Parkway driving in the wrong direction. After proceeding approximately five miles, defendant's car crashed into Burgess' vehicle, killing Burgess and severely injuring defendant. As a result of this accident, defendant was charged with depraved indifference murder, aggravated vehicular manslaughter and ancillary charges. He was also charged with criminal possession of a weapon and criminal possession of a controlled substance based on a handgun and cocaine that were found in his car. Defendant was convicted of all counts after a jury trial. A. Defendant Goes to the Island Rock Club. DELROY McCALLA was the primary witness cocnerning the events before McPherson drove onto the Southern State Parkway. McCalla was a long time friend of Crystal Greene, defendant’s girlfriend. (A.233-35). After midnight on October 19, 2007, he was present at Greene's home, where he met both defendant and his cousin Roman Taylor for the first time. (A.233-35). McCalla drove Greene and McPherson drove Taylor in separate cars to the Island Rock Club. (A.240-41). At the club, McCalla stood against the wall. Defendant was with the group but was also talking to other friends. They were at the club for an hour and a half. (A.250). McCalla saw that McPherson had more than two drinks, but also testified that “I 3 Two other witnesses testified about hearing gunshots from the Island Rock parking lot vicinity around 3:15 to 3:19 A.M. Fire Dispatcher BARBARA DeRISI was -4- wasn’t able to say how much he had. He wasn’t with me the whole time, so I don’t know if he had a new drink or the same drink or not." (A.250). McCalla stated that he had some previous “beef” with some people in the club and, although they did not confront him, he wanted to leave. (A.266). When they left the club, McCalla testified that Taylor was staggering and “looked pretty wasted,” while McPherson looked “okay” and “didn’t seem drunk.” (A.254-55). McPherson and McCalla both assisted Taylor out of the club and walked to a fence by the club’s parking lot. (A.255-56). Taylor sat down on the ground for a while. According to McCalla, McPherson told Crystal that he “lost my shit,” and looked in an area behind a car. (A.260-61). Mr. McPherson seemed a little mad when he came back from the area and stated that he “lost my shit” and there “ain’t nothing there.” (A.261, 264-65). McCalla had no idea what he was referring to. (A.262). Shortly thereafter, Mr. McPherson and the others walked back to their cars. (A.265). Defendant and McCalla then put Taylor into the backseat of defendant’s Lexus to lie down. (A.267). McCalla went back to his car, where he heard McPherson and Greene having a verbal disagreement. (A.269-70). At this point, McCalla was in his car, looking down, when he heard three shots and ducked. (A.276).3 in her nearby office and testified that she heard a first round of two shots followed by an additional five or six shots. (A.179-81). Island Rock employee KEVIN WHEELER testified that he heard four shots from the parking lot, but did not see who fired them. (A.211-12). Police eventually recovered five shell casings in the parking lot. (A.288). No bullets were recovered. -5- When he looked up, McPherson was talking to Greene and she was saying “let’s go.” (A.278-79). She got in McCalla’s car and McPherson told McCalla to take here home. After Greene was in his car, he drove off, causing his tires to screech and then drove Crystal home. (A.281, 283). Throughout this entire encounter, McCalla testified that he had seen McPherson’s hands and that he “didn’t see anything in his hands.” (A.270-71, 274, 280-81). B. Defendant Drives the Wrong Way on the Southern State Parkway. Later that night, at around 3:30 A.M., several witnesses saw defendant’s Lexus or a similar looking vehicle driving westbound on the eastbound lane of the Southern State Parkway. (A.387, 389, 397-98, 425-26, 429-30, 435-36, 515-17, 535-36). Several 911 calls were made, the first of which placed defendant going the wrong way at west of Exit 17. (A.365). Town car driver THEODORAS BANTILESKAS was the only witness who stated that defendant’s Lexus was going form lane to lane when he saw him around Exit 17. (A.401-04). -6- Other witnesses stated that the driver of the car maintained its lane as it was driving the wrong way. (A.443, 515, 536, 548). They estimated the Lexus’ speed at anywhere from 70 to 80 miles per hour. (A.430, 516, 546). One witness, EDWARD SHULTZE, testified that the Lexus passed him by inches as he swerved out of the way and made no effort to slow down or get out of the way. (A.539, 548). There was construction taking place on the westbound side of the Southern State Parkway between Exits 15 and 17. (A.371, 420). There were blinking yellow lights and large light towers every 120 feet on the westbound side by the central median because of construction. (A.444, 522-24). A construction worker blew the air horn on his Mack truck and the worker thought that defendant had not heard him since there was no indication of the Lexus slowing down or pulling off the road. (A.421-23, 445). C. The Accident. At around Exit 13 on the eastbound side of the Southern State Parkway, witnesses from behind a Jeep Grand Cherokee saw the Jeep explode and flip airborne in front of them. (A.23, 503-05, 528-29, 560-61). They didn’t see any vehicles coming toward them, but heard a loud bang, like a crunching of metal. (A.25). A police accident reconstructionist later determined that the circumstances of the accident were consistent with a head-on collision, although he was not able to determine what angles they impacted. (A.476). He further determined that the damage was consistent with 4 The reconstructionist additionally testified that there was a limited sight line for eastbound before exit 13 due to two bends in the road and that there was a good field of vision for vehicles traveling westbound. (A.483-84). -7- the Lexus being in the left lane closest to the Jersey wall and the Jeep veering from that lane in an attempt to avoid the accident. (A.493-94).4 He was unable to determine the speed of the Lexus. (A.477, 496). There was no evidence of braking for either the Lexus or the Jeep. (A.478, 481, 495). In the aftermath of the accident, the Lexus’ front end was crashed against the median wall and the Jeep was rolled over on the driver’s side door. (A.27-29, 56, 320). The nose of the Jeep started to catch fire as several bystanders ran to the Jeep. There was DJ equipment strewn in and around the Jeep. (A.575). The bystanders started yelling for the passenger inside and received no response. (A.28-29, 532, 571- 72). In fact, one bystander kicked in the windshield and another bystander stuck his head in the passenger side window to see if anyone was alive and responding. (A.27- 28, 571). The Jeep soon became engulfed in flames that were eventually extinguished by emergency personnel. (A.33, 76). The Lexus’ front was smashed in and defendant was trapped in his seat by the dashboard and steering column pushing against his lap. (A.530-31). He was bloody and barely conscious. (A.324-25). Taylor was is the backseat of the car, with his legs 5 Additionally, a bag containing .395 grams of cocaine was found underneath the front passenger seat. -8- draped over the center console, and was more talkative. (A.322, 574). The car gave off a smell of alcohol, and witnesses also smelled alcohol on defendant. (A.327-28, 531, 574). D. Defendant’s Arrest and the Search of the Vehicle. Mr. McPherson was eventually extricated from the car with emergency equipment and placed under arrest. (T.328-29). Defendant was taken by an ambulance to the emergency room, and at the hospital, a nurse drew blood to be tested for alcohol. The toxicology report of defendant’s blood sample showed an ethyl alcohol percentage of .19. (A.132). No drugs were found in defendant's system. (A.132). Subsequently, during a purported inventory search of the car at the scene of the accident, 41 nine-millimeter bullets, eight of which were in a partially loaded magazine, were found in the trunk, and a 9mm handgun with an unloaded magazine was found directly in front of the passenger seat. (A.78-80, 82, 97-98, 121-22, 124). The gun was later found to be operable and the fired casings matched those of the casing recovered from the parking lot at the Island Rock Club. (A.304-09). No firearms residue testing was performed on defendant and no there were no positive results from fingerprint testing on the gun. (A.311-12).5 6 On cross-examination, defense counsel elicited testimony from a police investigator that the body was burned beyond recognition and that he could not tell what race or sex it was. Moreover, defense counsel, on his own volition, admitted photographs of the charred corpse into evidence. -9- E. Leslie Burgess is Identified as the Victim. In the meantime, the fire was extinguished from the Jeep, and a charred human body was recovered and pronounced dead.6 The medical examiner stated that the victim had thermal burns to 90% of his body surface area. He additionally found fractures in all of the victim’s ribs, the sternum and the breast bone and that all of these injuries were from a blunt force type of trauma. There was no visible soot or burnt material in his airway, indicating that he died in the crash rather than being burned to death. The Police discovered that the Jeep had been registered to Wanda Crayton, who was the fiancée of a man named Leslie Burgess. Patricia Burgess, the victim’s sister, identified the remains based on a wrinkle that she recognized. She additionally testified that Mr. Burgess was a DJ and was returning from a DJ job the night of the accident. F. The Effect of Alcohol on Defendant’s Ability to Drive and Perceive Risks. The prosecution called DR. WILLIAM CLOSSON, a forensic toxicologist, as an expert on the effects of alcohol on the human body. Dr. Closson estimated that the -10- average male with a .19 alcohol content would have had about ten drinks in his system at the time of the administration of the test. (A.140). Dr. Closson described how alcohol is central nervous system depressant that slows down the functioning of the brain and the overall functioning of the body. In response to the consumption of alcoholic beverages, “psychomotor functions, such as moving muscles and responding to various stimuli” and the ability to “perceive objects in the environment and respond to those objects” is negatively affected.” (A.142). Alcohol limits a person’s field of vision, so that the person cannot see effectively to either side. (A.144). Alcohol creates a delay in response time of potentially up to three seconds. (A.145-46). Dr. Closson stated that alcohol has a degrading effect on the performance of divided attention tasks, with driving a car being an example. (A.149). Dr. Closson testified that a person cannot effectively devote his attention to all of the tasks, so “in essence, [he] just concentrates on one or two activities,” at the expense of others. (A.150). Dr. Closson additionally explained that alcohol tends to reduce the understanding of the consequences of a person’s actions. (A.151). On cross-examination, Dr. Closson testified that it is possible that alcohol could make a person unaware that they are driving on the wrong side of the highway. (A.158, 166-67). He further explained that it is possible for an intoxicated person may not -11- process signs, lights and/or horn sounds correctly so that the person may believe he is going the right direction. (A.167). Dr. Closson further explained that “possible” means “[t]hat is one of the observed occurrences of an individual consuming alcohol.” (A.169). G. Defense Counsel Fails to Make a Feingold Motion Despite His Awareness of the Issue. Throughout the trial, defense counsel was aware of the legal principle that alcohol intoxication negates the culpable mental state required to sustain a conviction of depraved indifference murder. For instance, in his opening, he asked the jury to consider the issue since: [t]hat’s going to be the issue in this case, as to his culpable mental state. Was he capable of making these decisions? Was he capable of observing the situation, perceiving a risk and purposely ignoring it, or as you will get charged at the end of the case, failed to perceive that risk out right? (A.18- 19). Later, he told the jury that “[y]ou will see how easy someone who is so intoxicated fails to perceive, wait a second, I should be perhaps on the other lanes” and that “it goes to, at the end of this case, what mental state he had." (A.19). In conclusion, defense counsel submitted that the jury should “convict Mr. McPherson of the conduct of what he did, but not of an overcharge, not something above his conduct” and asked that the jury find defendant not guilty of depraved indifference murder. 7 Defense counsel additionally argued during summation that the People had failed to prove the specific identity of Leslie Burgess as the victim of the crime. -12- (A.19-20). Later in the trial, during a charge colloquy, the court specifically addressed the effects of intoxication on the depraved indifference charge. It asked whether the then recent decision of People v. Feingold, 7 N.Y.3d 288 (2006) applied “if the defendant is so oblivious to his surroundings by means of voluntary intoxication.” (A.228-29). It additionally addressed the causation element of the charge and posed the question “if the defendant embarked on a night of drinking and was unaware of his conduct before the collision, can he be held accountable on the issue of causation." (A.229-30). Finally, during summation, counsel specifically stated to the jury that the issue that “needs to be looked at as to whether Franklin McPherson was driving that vehicle, whether he perceived a risk, a grave risk that there be substantial injury or death. (A.587). On this note, he quoted specific testimony from the forensic toxicologist Closson regarding the effects of alcohol on processing information and the resulting tunnel vision leading to the effect that defendant believed that was driving the correct direction. (A.590-91, 594, 596-97). In fact, during summation, defense counsel argued that the “People can’t argue, he’s so intoxicated on the one hand, but yet on the other hand he’s not that intoxicated so he can perceive the risk and ignore it.”7 However, the court later charged the jury that proof of identity of the death of a specific person does not constitute an element of any of the charges against defendant. When defense counsel objected on the grounds that he had made this argument during summation, the trial court noted that it had made its position clear when it denied the trial order of dismissal. -13- Despite the fact that defense counsel was aware and had argued to the jury that intoxication negates the culpable mental state required to sustain a conviction for depraved indifference murder, defense counsel utterly failed to include this issue in his trial order of dismissal. Instead, he contended the prosecution had failed to prove the specific identity of Leslie Burgess as the victim of the accident. (A.579-80). On this issue, he stated that somewhat nonsensically that the jury can’t draw inferences from inferences when the only identification was from the victim’s sister. (A.581). He then stated that he put the photograph of the victim’s body into evidence to demonstrate that the identification was invalid since he contended the body was charred beyond recognition. (A.581-84). The court denied the motion. (A.586). Moreover, even though the gun found in defendant's car was unloaded and no witness testified to seeing defendant with a loaded weapon in his hand, counsel did not move to dismiss or reduce the charge of second-degree weapon possession. H. The Verdict and Sentence. After the court concluded its charge – which included the definition of depraved -14- indifference adopted in People v. Feingold, 7 N.Y.3d 288 (2006) (T.1424) – the jury commenced its deliberations. While deliberating, the jury asked for, inter alia, a readback of Dr. Closson's testimony on the effects of alcohol and the elements of depraved indifference murder and weapon possession. On the second day of deliberations, the jury returned a verdict convicting the defendant of all counts submitted to it, including depraved indifference murder and criminal possession of a weapon in the second degree. On September 16, 2008, defendant was sentenced to concurrent terms of 25 years to life for second-degree murder, 5 to 15 years for vehicular manslaughter, one year for DWI, one year for criminal possession of a controlled substance and 15 years for criminal possession of a weapon. I. Appeal to the Second Department. Defendant filed a timely notice of appeal from his conviction and sentence. (A.15-16). Thereafter, he filed a brief in the Appellate Division, Second Department, which argued inter alia that the evidence of depraved indifference murder and criminal possession of a weapon were legally insufficient and that he received ineffective assistance of trial counsel. The People opposed defendant’s appeal and defendant served a reply. On November 1, 2011, the Second Department held, in a 3-1 decision, that -15- defendant’s depraved indifference murder conviction should be affirmed. (A.2-14). The majority found that defendant’s legal sufficiency claims as to the depraved indifference murder and weapon possession convictions were unpreserved. (A.3). It additionally found that the evidence was sufficient to support those convictions, stating inter alia as follows: We disagree with our dissenting colleague's view that there was no evidence that the defendant deliberately and purposefully proceeded the wrong way down the parkway, in recognition of the grave risk to human life, and with utter disregard for the consequences. Rather, viewing the evidence in the light most favorable to the prosecution, as we must, the testimony of the witnesses who observed the defendant speeding directly at them on the parkway, causing those witnesses to swerve in order to avoid a collision, demonstrates that the defendant's mental state was one of depraved indifference to human life. The defendant asserts that his BAC content and intoxication rendered him unable to form the mental state of depraved indifference to human life. To the contrary, the evidence demonstrated that the defendant helped Taylor leave the nightclub. In addition, McCalla testified that when the defendant left the nightclub, the defendant “looked okay to [him],” “didn't look like intoxicated to me [sic],” and that the defendant “seemed like he could handle himself.” The evidence did not establish that the defendant was too intoxicated to form the culpable mental state necessary to prove depraved indifference. Thus, the record supports a view of the evidence that the defendant was coherent and able to form the requisite mens rea prior to leaving the parking lot. -16- (A.4) (citations omitted). Relying on People v. Wells, 53 A.D.3d 181 (1st Dept. 2008), the majority stated that “a defendant’s statutory intoxication is not dispositive on the issue of whether a defendant was capable of forming the requisite mens rea.” (A.4). Moreover, the majority distinguished this Court’s decision in People v. Valencia, 14 N.Y.3d 927 (2010), on the grounds that (a) Valencia proceeded from a bench trial in which “the finder of fact made a specific finding that the defendant’s intoxication rendered him ‘oblivious’ to his travel upon a highway prior to the accident;” (b) “the only legal issue addressed in the briefs and argued before the Court of Appeals [in Valencia] was whether the defendant's intoxication was too temporally remote from his driving to permit his conviction of depraved indifference assault;” and (c) that in Valencia, “there was no evidence in that case that the defendant drove past various other drivers who had to swerve to avoid hitting him prior to the fatal collision.” (A.5). The majority further found that the defendant need not be suicidal in order to be convicted of depraved indifference murder on these facts: The dissent posits that in order to convict the defendant of depraved indifference murder, the jury would have had to have found that the defendant was suicidal. This assertion is flawed because it is not necessary for the defendant to have intended to kill himself when he drove the wrong way down the parkway. Indeed, to find the defendant guilty of depraved indifference murder, a rational trier of fact would -17- not need to find that the defendant had a specific, conscious intent to cause a certain result. Under the facts presented here, the defendant's action of driving his vehicle towards oncoming traffic on the parkway for approximately five miles constituted reckless conduct which carried with it a grave risk of death and evinced a depraved state of mind. The negation of this intent, by extreme intoxication, is not supported by the record. For example, the defendant helped Taylor into the car, he searched for his missing drugs, and McCalla testified that the defendant did not appear intoxicated. Thus, we cannot conclude that the evidence of the defendant's guilt of murder in the second degree was legally insufficient to support that conviction. (A.6) (citations omitted). Finally, the majority held that there was sufficient evidence to support the weapon possession charge and that defendant was not deprived of the effective assistance of counsel. (A.6). The Hon. Ariel Belen dissented on the issue of whether the evidence was sufficient to support the depraved indifference murder charge. He addressed the majority opinion, inter alia, as follows: To reiterate, the defendant, who had a blood alcohol content more than twice the legal limit, drove at night on a parkway for several miles in the wrong direction at a high rate of speed. Although several oncoming drivers swerved out of the defendant's path over the course of several miles, the People produced no evidence at trial which demonstrated, beyond a reasonable doubt, that the defendant understood that he was driving the wrong way down the parkway prior to the head-on collision, with utter disregard for the -18- consequences, as might be evident with, for example, evidence that the defendant's vehicle continued on its course after colliding with an object or other vehicle. In short, there is no evidence that the defendant deliberately drove his vehicle the wrong way down the parkway... The majority's attempt to distinguish People v. Valencia is unavailing. In Valencia, the evidence demonstrated that the defendant's blood alcohol content was approximately three times more than the legal limit, he drove at night in the wrong direction of the Wantagh State Parkway at a high rate of speed, and did not stop or slow down despite attempts by other drivers to warn him of the dangers he was creating. After traveling four miles, the defendant crashed head-on into one vehicle and then careened into another car. The Court of Appeals held that such evidence, which is factually indistinguishable from the instant case, demonstrated intoxication and reckless driving, but not depraved indifference and, accordingly, affirmed this Court's vacatur of the defendant's conviction and the sentence imposed thereon for assault in the first degree. I am also unconvinced by the majority's attempt to limit the holding of Valencia based on the assertion that the briefs submitted to the Court of Appeals argued only “whether the defendant's intoxication was too temporally remote from his driving to permit his conviction of depraved indifference assault.” The majority (memorandum) opinion in Valencia is clear, stating, “[t]here is insufficient evidence to support a conviction for depraved indifference assault. The trial evidence established only that defendant was extremely intoxicated and did not establish that he acted with the culpable mental state of depraved indifference.” The majority opinion clearly did not limit itself to the issue of temporal remoteness between the defendant's act of drinking to the point of extreme intoxication and the later act of operating a vehicle. -19- (A.9-10) (citations omitted). Indeed, Justice Belen noted that the concurring opinion of Judge Graffeo in Valencia explicitly stated that this Court had not affirmed the reduction of the depraved indifference charge on temporal remoteness grounds, but “because of the lack of the evidence to support all the elements of depraved indifference assault,” and that the only mention of temporal remoteness came in the separate opinion of Judge Jones. (A.10). Judge Belen further noted that, because defendant’s conduct placed himself as well as others in grave risk of death, “[i]n effect, to convict the defendant of depraved indifference murder, the jury would have to find that the defendant was suicidal” and that there was “no basis for such a finding.” (A.11). Nor was there any evidence that “the defendant intentionally drove in the wrong direction on the parkway at a high rate of speed or continued on his path once he realized he was driving in the wrong direction on the parkway,” but instead, the evidence showed that he “acted recklessly by failing to perceive that he was driving the wrong way.” (A.11). The dissenting judge attacked the majority’s reliance on Wells on the ground that the Wells court’s holding was contrary to Valencia and that the mere decision to drink with the knowledge that one would later operate a motor vehicle had been rejected as a ground for depraved indifference murder. (A.11). Judge Belen also noted that the Legislature had created the offense of aggravated 8 Judge Belen also stated, in the alternative, that the depraved indifference murder conviction was against the weight of the evidence. In this regard, he noted Dr. Closson’s testimony regarding the effect of alcohol on perception and judgment, and opined that although the People presented testimony of witnesses who saw the defendant’s vehicle traveling the wrong way on the parkway, “none of those witnesses’ testimony established that the defendant understood that he was traveling in the wrong direction” and “there is no evidence that the defendant heard those warnings or understood that the warnings were for him.” (A.12). Nor did the testimony of the People’s accident reconstructionist indicate that the defendant may have driven the wrong way down the parkway. (A.13). -20- vehicular manslaughter in 2007 precisely to address the concerns of district attorneys who believed that Feingold had made depraved indifference murder inapplicable to such situations. (A.8). Thus, although acknowledging the “horrific consequences” of defendant’s drunk driving, Judge Belen opined that the evidence was not sufficient to convict him of depraved indifference murder. (A.9).8 On June 12, 2012, Judge Belen issued an order granting leave to appeal “to the extent that the following question is certified to the Court of Appeals: Was so much of the decision and order of this Court dated November 1, 2011, as, in affirming the judgment of the County Court, Nassau County, rendered September 16, 2008, determined that the defendant was not deprived of the effective assistance of counsel, 9 As noted in footnote 1 on page 1 above, defendant takes the position that there is no precedent or authority for a limited grant of leave to appeal to this Court, and that he may raise in this Court all issues raised below. 10 In order to eliminate any doubt, each and every claim brought herein is raised under both the United States and New York State Constitution. Moreover, where a defendant raises both Federal and State ineffective assistance claims, it is strongly recommended that the reviewing court conduct a separate legal analysis under each -21- properly made?” (A.1).9 POINT I DEFENDANT'S TRIAL COUNSEL WAS INEFFECTIVE FOR NOT MOVING TO DISMISS THE DEPRAVED INDIFFERENCE MURDER CHARGE ON FEINGOLD GROUNDS (U.S. CONST. AMEND. V, VI, XIV) It is axiomatic that under both the United States and New York State Constitutions that criminal defendants are entitled to effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 686 (1984); see also People v. Baldi, 54 N.Y.2d 137, 147 (1981). Under Strickland and its progeny, a defendant who claims that he was denied the effective assistance of counsel must meet a two-prong test: he must show both that his attorney fell below accepted professional standards and that he was prejudiced by his counsel's lapse. See id. In New York, a defendant may obtain relief if he was denied "meaningful representation" at every stage of the trial process. See Baldi, 54 N.Y.2d at 147.10 standard. See Rosario v. Ercole, 617 F.3d 683, 685, 687-88 (2d Cir. 2010) (opinions regarding the denial of rehearing en banc). 11 The Kyles case was decided in the context of suppression of Brady material; however, the Kyles Court specifically noted that the “reasonable probability” standards applicable to Brady cases and to cases of ineffective assistance of counsel are the same. See Kyles, 514 U.S. at 533. -22- In order to demonstrate prejudice under the Strickland standard, the defendant must show a reasonable probability that his counsel's errors affected the outcome of the trial. See Strickland, 466 U.S. at 686. In Kyles v. Whitley, 514 U.S. 419, 434 (1995), the United States Supreme Court explained that the “reasonable probability” standard is met when the errors of trial counsel “undermine confidence in the outcome of the trial." In addition, the Kyles Court further stated that the reasonable probability standard does not require demonstration by a preponderance of the evidence that counsel’s error “would have resulted ultimately in the defendant's acquittal” and that “[a] defendant need not demonstrate that after discounting the [errors of counsel], there would not have been enough left to convict.” Id. at 434-35.11 Thus, a defendant need not show that he would have been acquitted or that he would have been entitled to judgment as a matter of law had his counsel not erred, but only that his counsel’s performance undermines confidence in the verdict when considered as part of the whole case. Id. Moreover, this determination may be made with the benefit of -23- hindsight. Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). The New York standard under Baldi, which demands that criminal defense attorneys provide "meaningful representation," is a more "flexible standard" than Strickland. See People v. Murray, 300 A.D.2d 819, 821 (3d Dept. 2003). New York courts have never applied the ineffective assistance test "with such stringency as to require a defendant to show that, but for counsel's ineffectiveness, the outcome would probably have been different." People v. Stultz, 2 N.Y.3d 277, 283 (2004). Prejudice, under New York law, is "a significant but not indispensible element in assessing meaningful representation," with the court's focus being "on the fairness of the proceedings as a whole." Id. at 284 (emphasis added). Thus, a defendant may obtain relief for ineffective assistance of counsel under the New York Constitution even if he cannot demonstrate sufficient prejudice to meet the Federal standard. The reverse, however, is not true. If an attorney commits a single error that rises to the level of prejudice specified by Strickland, then the defendant has been deprived of his Sixth Amendment rights even if that attorney's representation was "competent in all other respects." Henry v. Poole, 409 F.3d 48, 61 (2d Cir. 2005); accord Rosario v. Ercole, 601 F.3d 118, 126 (2d Cir. 2010) ("look[ing] past a prejudicial error as long as counsel conducted himself in a way that bespoke of general competency throughout the trial... [is] an absurd result inconsistent with... the mandates of Strickland"). Thus, the -24- defendant in this case is entitled to relief if he can satisfy either the Strickland or Baldi standard. On this record, he has satisfied both. A. Where the Law is In Flux, Effective Assistance of Counsel Necessarily Includes Preservation of All Strong Issues, Even if Not Totally Clear-Cut. Defendant first contends that, during periods of rapid and profound change in the law, effective assistance of counsel – whether under the Strickland “professional standard” formulation or the Baldi “meaningful representation” standard – requires preservation of colorable sufficiency claims through a trial motion to dismiss. Where the law is in a state of flux – as the law of depraved indifference certainly was at the time of defendant McPherson’s trial, and continues to be today – counsel’s obligation to preserve meritorious sufficiency claims cannot be determined simply by reference to settled precedent; instead, counsel is and must be obliged to preserve all claims that have a reasonable chance of being recognized by an appellate court during the period that the defendant’s appeal is likely to remain pending. In previous cases, this Court has divided ineffective assistance claims predicated upon failure to make an objection or motion into three categories: those that have "little or no chance of success," see People v. Ennis, 11 N.Y.3d 403, 415 (2008); those that have some merit but are "not so compelling that a failure to make [them] amount[s] to ineffective assistance," see People v. Carter, 7 N.Y.3d 875, 876-77 (2006); and 12 A search of the New York State DOCCS inmate web site reveals that Carter was admitted to state prison on October 17, 2002. -25- "winning argument[s]" that "[cannot] reasonably [be] thought... not worth raising," People v. Turner, 5 N.Y.3d 476, 481 (2005). Each of those cases was distinct from the instant case, however, in that they all involved settled issues of law with no immediate prospect of change. In Turner, for instance, the motion that the defendant’s trial counsel failed to make related to the applicable statute of limitations – something that had not changed at least since the inception of the Penal Law, and was indeed still governed by precedent from the early twentieth century. See Turner, 5 N.Y.3d at 481-82 (describing the “old” case that governed the issue that Turner’s counsel failed to raise). In Ennis, the alleged errors by counsel involved Brady materiality, which is likewise a standard that has been settled in this State since People v. Vilardi, 76 N.Y.2d 67 (1990) was decided. See Ennis, 11 N.Y.3d at 414-15. And in Carter, the defendant’s counsel failed to raise the issue of whether first-degree and second-degree assault must be charged in the alternative, which was governed by this Court’s 1995 decision in People v. Trappier, 87 N.Y.3d 55 (1995). See Carter, 7 N.Y.3d at 876-77. Since Carter’s trial occurred in or about 2002,12 the issue that his counsel failed to raise was likewise settled law at the time. -26- The instant case presents a fourth category: one where an attorney is called upon to make a sufficiency motion under circumstances where the law is not settled. At the time of defendant McPherson’s trial, the law of depraved indifference was undergoing profound change. Only six years earlier, in People v. Sanchez, 98 N.Y.2d 373 (2002), this Court held that depraved indifference murder was virtually identical to intentional murder. But in a series of cases beginning with People v. Hafeez, 100 N.Y.2d 253 (2003) and culminating in People v. Suarez, 6 N.Y.3d 202 (2005), this Court steadily narrowed the circumstances under which depraved indifference crimes could be charged to a few narrow factual situations. And in People v. Feingold, 7 N.Y.3d 288, 294-96 (2006), this Court further held that depraved indifference was a culpable mental state – the first, and thus far only, time a mens rea not specified in Section 15.05 of the Penal Law has been recognized – and that, to be convicted of a depraved indifference crime, the defendant must “not care if another is injured or killed” by his actions. Plainly, much remained to be determined after Feingold: now that the non- statutory mental state of depraved indifference had been recognized, its contours had to be fleshed out in further case law. Just as plainly, the applicability of depraved indifference crimes to borderline cases such as drunk driving was now very much in question, as evidenced by the case of Albeiro Valencia (who had been sentenced on February 23, 2007 and whose conviction was on appeal to the Second Department at -27- the time of defendant’s trial) which would ultimately result in this Court’s decision in People v. Valencia, 14 N.Y.3d 927 (2010). Indeed, even before Valencia, and before defendant’s trial, at least two post-Feingold courts – People v. Peryea, 2006 N.Y. Misc. LEXIS 4137 (Clinton Co. Ct. 2006) and People v. Gordon, 34 A.D.3d 316 (1st Dept. 2006) – had found that drunk driving did not amount to depraved indifference. It should be noted that the Feingold issue was not an obscure point of law. The sea change in New York's depraved indifference jurisprudence was much remarked upon during and after its occurrence. Moreover, as discussed at length in the Statement of Facts, trial counsel Lemke obviously did consider the argument worth raising, because he did so in opening and summation. This is not a case in which counsel made a reasoned choice to forgo a Feingold strategy: instead, he pursued this issue throughout the trial, but inexplicably neglected to preserve it as an issue of law. Under these circumstances, even if the defendant’s Feingold claim fell short of being “clear-cut and completely dispositive” – which, in any event, defendant contends that it was – then any reasonable counsel was obliged to preserve it. This was not a case where counsel could simply look to settled law and make a precise assessment of the strength and merit of defendant’s sufficiency claim. Instead, there was a distinct possibility – indeed, a likelihood – of further changes and clarifications in the law with respect to the precise issue at bar in this case, i.e., the applicability of the depraved 13 It should be noted that the prejudice suffered by defendant due to Mr. Lemke’s error is not based on whether a motion to dismiss would have been granted by the trial court, but whether it would have preserved a sufficiency issue for review and reversal by this Court. See Jelinek v. Costello, 247 F. Supp. 2d 212, 271 (E.D.N.Y. 2003) (“[f]ailure to... preserve a ‘strong’ claim of insufficiency of evidence for appeal may merit a finding that counsel's performance was constitutionally ineffective”) (emphasis added). Moreover, even the Second Department’s resolution of the depraved indifference issue is not dispositive of this claim, because the prejudice analysis, for ineffective assistance purposes, hinges on whether there is a reasonable probability that defendant would have succeeded before the State's highest court. See Mayo v. Henderson, 13 F.3d 528, 534 (2d Cir. 1994); Claudio v. Scully, 982 F.2d 798 (2d Cir. 1992). 14 This case is thus readily distinguishable from People v. Keating, 18 N.Y.3d 932 (2012), in which the defendant was tried and convicted in 1996 at a time when this State’s law of depraved indifference was settled. In any event, the Keating case (a) involved a claim of ineffective assistance of appellate counsel, not trial counsel; and (b) involved a claimed evidentiary error rather than a foregone sufficiency claim. -28- indifference murder statute to drunk-driving accidents. What was not “clear-cut” at the time of defendant’s trial might become so, and in fact did become so, by the time his appeal was heard.13 Put another way, counsel was “on notice that the law was no longer static and... could reasonably have argued that the evidence presented by the state in their cases was legally insufficient to support a conviction for depraved indifference murder.” Gutierrez v. Smith, 692 F.3d 256, 264 (2d Cir. 2012).14 Furthermore, there would have been absolutely no “down side” to making a sufficiency motion based on Feingold. Sufficiency motions are made outside the presence of the jury and are based on pure issues of law; thus, a defense counsel who -29- makes such a motion does not risk inflaming the jurors against his client or opening the door to the admission of damaging evidence. There is, quite simply, “everything to gain and nothing to lose” from making such a motion, and hence no conceivable strategic justification for not doing so. See People v. Donovan, 184 A.D.2d 654, 655 (2d Dept. 1992); People v. Gil, 285 A.D.2d 7, 13 (1st Dept. 2001). Thus, defendant submits that this Court should recognize a fourth category of failure-to-object ineffective assistance claims, in addition to those set forth in Ennis, Carter and Turner, and hold that, where the law governing a potential sufficiency claim is in flux, counsel must preserve that claim via a trial motion to dismiss as long as it is colorable, whether or not it is “clear-cut and completely dispositive” under the precedent existing at the time. Plainly, under that standard, Mr. Lemke rendered ineffective assistance to defendant McPherson by not preserving his Feingold issue. Moreover, for the reasons set forth in Point I(B) below, defendant contends that the Feingold issue was “clear-cut and completely dispositive,” and that competent counsel aware of Feingold – as Mr. Lemke unquestionably was, because he discussed the Feingold holding with the trial judge – would have regarded a sufficiency motion as a "winning argument" that there was no reasonable basis to forgo. Thus, even if this Court declines to recognize an “unsettled law” category apart from Turner, Mr. Lemke’s failure to move for dismissal on Feingold grounds was still ineffective. 15 The dissenting judge in the Second Department also noted that Valencia's blood alcohol level was .21, and that "he passed five red-and-white wrong-way signs, -30- B. A Motion to Dismiss on Feingold Grounds Would Have Been Meritorious. Moreover, defendant unquestionably suffered prejudice, because the facts of his case simply do not make out depraved indifference murder, even in the light most favorable to the People. "The standard for sufficiency of evidence is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found essential elements of the crime beyond a reasonable doubt." People v. Schulz, 4 N.Y.3d 521, 529 (2004), quoting Jackson v Virginia, 443 U.S. 307, 319 (1979). In light of this Court’s decisions in People v. Valencia, 14 N.Y.3d 927 (2010) ("Valencia II") and People v. Prindle, 16 N.Y.3d 768 (2011), no rational juror could make that finding with respect to the charge of depraved indifference murder. 1. The Valencia and Prindle Holdings. The Valencia case, as described in Judge Victoria Graffeo's concurrence, involves facts almost identical to this one: Defendant's blood alcohol level was about three times the legal limit when he drove at night in the wrong direction on a Long Island parkway at a high rate of speed. He continued on this course despite attempts by oncoming drivers to warn him of the danger he was creating. After approximately four miles, defendant crashed head-on into another vehicle and then careened into another car.15 seven large overhead exit signs that could not be read because he was approaching them from the opposite direction, and 61 other signs that could not be read because they were backwards for the defendant's direction of travel." People v. Valencia, 58 A.D.3d 879, 881 (2d Dept. 2009) (Dillon, J., dissenting). -31- Valencia II, 14 N.Y.3d at 927 (Graffeo, J., concurring) (emphasis added). After the above-described accident, which resulted in serious injury to two innocent people, Valencia was charged with depraved indifference assault, and tried in Nassau County before the same judge who presided over the instant trial. See People v. Valencia, 58 A.D.3d 879 (2d Dept. 2009) ("Valencia I"). On appeal, the Second Department reversed his conviction of that charge, finding that the evidence "was legally insufficient to establish that he acted with the culpable mental state of depraved indifference to human life at the time he collided with the complainants' vehicles." Id. at 880 (emphasis added). The Second Department elaborated further: [W]e find unpersuasive the prosecution's contention that the mens rea component of depraved indifference assault may be satisfied by considering the defendant's state of mind at a point much earlier in time than the accident, when the defendant allegedly made a conscious decision to consume an excessive amount of alcohol with the awareness that he subsequently would be operating a motor vehicle. Assuming arguendo that the evidence would support such a finding, and that such a state of mind would otherwise satisfy the culpable mental state of depraved indifference to human life, we conclude that the defendant's state of mind at the time he consumed the alcohol was too temporally remote from his operation of the vehicle to support a conviction for -32- depraved indifference assault in this case. Id. Judge Dillon dissented from the Second Department’s ruling, and granted the People leave to appeal. On June 17, 2010, this Court unanimously affirmed this Court's decision. See Valencia II, 14 N.Y.3d at 927. In a per curiam opinion, the court stated, "[t]he trial evidence established only that defendant was extremely intoxicated and did not establish that he acted with the culpable mental state of depraved indifference." Id. This Court’s subsequent Prindle decision involved facts even more egregious. As described by Judge Pigott in dissent, Prindle, “who was concerned about being arrested for the theft of a $400 snowplow blade, led police on a 2 ½–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.” Prindle, 16 N.Y.3d at 771 (Pigott, J., dissenting). While fleeing from the police, Prindle increased his speed, weaved into the left-hand passing lane, barreled through a red light at a major intersection, and continued his flight even after striking a truck at another major intersection. See id. at 772-73. Despite these egregious facts – fleeing from the police, driving in an extremely reckless manner through heavily trafficked areas, and continuing to do so even after striking another vehicle – this Court held that “the evidence adduced at trial does not -33- support the jury's conclusion that defendant evinced a depraved indifference to human life.” Id. at 771 (memorandum opinion). 2. The Second Department’s Attempt to Distinguish Valencia and Prindle, and its Reliance on Wells, Lack Merit. Additionally, the Second Department’s attempts to minimize the holding and controlling nature of Valencia II are of no avail. The first distinction drawn by the Appellate Division – i.e., that Valencia arose from a bench trial – is a distinction without a difference. Unlike Feingold, in which this Court specifically deferred to the bench-trial judge’s finding that Feingold lacked a depravedly indifferent mental state, the Valencia II decision contained absolutely no statements of deference to the trial judge’s factual findings, nor did it rely on such findings to support its holding. Instead, this Court stated simply and pointedly as follows: There is insufficient evidence to support a conviction for depraved indifference assault. The trial evidence established only that defendant was extremely intoxicated and did not establish that he acted with the culpable mental state of depraved indifference. Valencia II, 14 N.Y.3d at 927-28 (emphasis added). This Court did not say "this particular trier of fact found" that Valencia lacked depraved indifference; instead, it said "the trial evidence established" the lack of a mens rea. In other words, the Valencia II court held that no trier of fact, whether judge or jury, could reasonably find 16 Moreover, unlike Feingold, the trial judge in Valencia did not "pointedly say[] that defendant was not depravedly indifferent." Instead, the trial court stated that "defendant's intoxication rendered him 'oblivious' to his dangerous travel upon the highway prior to the accident" – a finding of fact that was ambiguous as to whether he was depravedly indifferent at that time, and which the court apparently found it unnecessary to explore in light of its finding that the depraved indifference occurred earlier. See Valencia I, 58 A.D.3d at 881 (Dillon, J., dissenting). This was not an explicit finding of innocence such as was made by the trial court in Feingold, so this Court was not required to defer to it in conducting its own independent evaluation of the trial evidence. -34- depraved indifference under the facts at bar.16 The second distinction drawn by the Second Department – that Valencia II hinged on the temporal remoteness between the alleged act of depravity and the homicide – is likewise not so. As Justice Belen correctly stated, the only mention of temporal remoteness in Valencia II was in the separate concurrence of Judge Jones, and that in fact, Judge Graffeo made clear that this Court’s decision did not hinge on any temporal factors. Instead, as is plain from the language of the per curiam opinion, this Court made a simple finding that the trial evidence was insufficient – a finding that controls subsequent cases on like facts. Third, the Appellate Division majority’s contention that Valencia did not have to “drive past various other drivers who had to swerve to avoid hitting him” (A.5) is also a distinction without a difference. As Judge Graffeo pointed out in her concurrence, there were “attempts by oncoming drivers to warn [Valencia] of the -35- danger he was creating.” See Valencia II, 14 N.Y.3d at 928 (Graffeo, J., concurring). Thus, there was at least as much of an attempt to put Valencia on notice, and at least as many warning signs, as there were in the instant case. And – as Justice Belen correctly stated – there was no evidence whatsoever, in the instant case, that defendant McPherson was aware of the attempted warnings or evasive action taken by other drivers, or that such warnings were intended for him. Fourth, the Second Department’s attempt to distinguish Prindle must fail. Indeed, the distinction drawn by the Appellate Division majority – that Prindle was attempting to flee from the police, while defendant McPherson was not (A.5) – is one that only increases Prindle’s depravity as compared to McPherson. Someone who is attempting to flee from the police has a powerful motive to avoid arrest which overrides the risk of harm to himself and others, and is thus more indicative of “not caring” about the risk of death than simple drunk driving, in which the defendant is unable to fully appreciate the risks. The Second Department’s distinction of Prindle is one that favors defendant McPherson, not one that counsels against him. Finally, the Appellate Division majority improperly relied on the First Department’s decision People v. Wells, 53 A.D.3d 181, 193 (1st Dept. 2008). TO the extent that any dicta in Wells suggested in dicta that drunk driving might be sufficient in itself to constitute depraved indifference under Feingold, that suggestion is obviously -36- no longer valid in light of Valencia II. In any event, the defendant in Wells struck a parked car before going on to hit the victim’s vehicle, meaning that he had physical and unmistakable warning of the danger posed by his conduct in a way that defendant McPherson did not. See id. at 183. It is Valencia II and Pringle, not Wells, that are controlling here. 3. Under Valencia and Prindle, Defendant Lacked a Depraved Mental State. Given the failure of the distinctions drawn by the Second Department majority, Valencia II and Prindle – and particularly the former – are completely dispositive of the instant case. The facts of Valencia II are, as noted above, almost the same. All the factors upon which the majority relied in concluding that the evidence supported defendant McPherson’s depraved indifference murder conviction – his level of intoxication, the time of night, driving the wrong way at high speed, disregarding warning signs and continuing for a long distance – were present in Valencia II. Indeed, Valencia's "response after being informed that he had injured other people was: 'I don't know and I don't care,'" see Valencia II, 14 N.Y.3d at 928 (Graffeo, J., concurring), which is considerably more indicative of a depraved mind than anything McPherson did or said. See Feingold, 7 N.Y.3d at 296 (depraved indifference is "a willingness to act not because one intends harm, but because one simply doesn't care whether -37- grievous harm results or not"). If Valencia evinced only "extreme intoxication" and not depraved indifference, then neither did the defendant herein. Indeed, if anything, the level of intoxication shown by defendant (and Valencia) negates the culpable mental state of depraved indifference. In People v. Coon, 34 A.D.3d 869, 870 (3d Dept. 2006), the Third Department held thata defendant who was "too intoxicated to form a specific criminal intent... also would be incapable of possessing the culpable mental state necessary to prove depraved indifference." This conclusion was echoed by the Fourth Department in People v. Wimes, 49 A.D.3d 1286, 1287 (4th Dept. 2008), which stated that "intoxication could have negated the element of depraved indifference in the crime to which defendant pleaded guilty." Id. These holdings rest on a sound basis, since the mental state of depraved indifference as defined in Feingold – an "utter disregard for human life" characterized by "not caring" whether grievous harm results – implies an appreciation of the risks created by the defendant's conduct. If the defendant is not aware that his conduct might pose a grave danger to human life, then he cannot be said to evince an "utter disregard" for life by proceeding. See Ryan J. Mahoney, Note: Depraved Indifference Murder in the Context of DWI Homicides in New York, 82 St. John's L. Rev. 1537, 1561 (2008) ("as a result of his intoxication he was not aware of what he was doing and the risks involved and was not, therefore, competent to consciously disregard those risks"). -38- "Most people... cannot perform an accurate self-assessment of their own intoxication and are unable to recognize the risks associated with driving in such a state," and may believe that they are "fine to drive." Id. If a drunk driver does not fully appreciate the risk he is causing (and taking), and he believes that death is an improbable result of his conduct, "it cannot be said that the actor 'simply does not care' if someone is killed, and it surely cannot be said that this act is as blameworthy as intentional murder." Id. at 1562. Moreover, unlike classic acts of depraved indifference such as dropping heavy rocks from a highway overpass or opening the lion's cage at the zoo – which are done with intent to cause mayhem, even if not with intent to kill – intoxicated drivers do not set out to harm or even scare anyone. Their intention is to get home. Causing injury or death would not further this intention, and would in fact impede it, because if they get into an accident, they will likely get hurt themselves. Far from "not caring" if death or grievous harm results, drunk drivers do their poor best to avoid such consequences. Their best may be – and all too often is – not good enough, but this does not mean that they don't care. It has also been noted that "inebriated people are only able to focus on one cue at a time" and "are not able to weigh the costs and benefits of their actions." Mahoney, supra, at 1562. Their thought process runs along the following simple lines: "I am -39- tired, I want to go home, and so I will drive home." Id. "A drunk driver who fails to consider the risks or consequences of his actions commits an extremely reckless and foolish act, not because of his lack of regard for the lives of others, but because of his intoxication and inability to validly assess the situation in that state." Id. at 1563. This Court need not rely on Mr. Mahoney for guidance, because testimony to precisely the same effect was presented by the People's expert witness, Dr. Closson. As noted above, Dr. Closson testified that defendant had consumed 10 to 12 drinks at the club, a very high level of intoxication. He opined that highly intoxicated people have limited fields of vision – which may account for defendant's inability to see signs or warning lights to his side – and that their response to stimuli is delayed. He further testified that intoxication impedes the ability to multitask, and that intoxicated people who are performing a task which requires multiple functions, such as driving, will concentrate on just one or two. Moreover, he acknowledged that alcohol reduces the ability to perceive and appreciate risks. In the instant case, the testimony of the witnesses who saw McPherson on the road demonstrate precisely which task he was concentrating on – staying in his lane. He was able to concentrate enough to maintain his lane of travel, but at the price of the other functions he had to perform in order to drive a car. His focus on staying in his lane precluded him from noticing oncoming headlights or signs, processing the sound -40- of car horns, or otherwise recognizing what danger he was in. Thus, as the People's own witness illustrates, he cannot be said to have "not cared" whether harm resulted or not. In the face of this evidence – or lack thereof – the Second Department majority heavily on the supposition that, rather than making an inadvertent wrong turn and then ending up in a situation over his head, Mr. McPherson deliberately chose to enter the highway in the wrong direction and thereafter consciously failed to take corrective action. But there is no more evidence of that in the instant case than there was in Valencia. As Judge Dillon noted in his dissent to Valencia I: [T]he defendant operated his vehicle northbound in a southbound lane of the Wantagh State Parkway for approximately 3.9 miles toward oncoming traffic, at a speed of approximately 60 miles per hour. Along the way, he passed five red-and-white wrong-way signs, seven large overhead exit signs that could not be read because he was approaching them from the opposite direction, and 61 other signs that could not be read because they were backwards for the defendant's direction of travel. Valencia I, 58 A.D.3d at 881 (Dillon, J., dissenting). Likewise, the concurrence in Valencia II noted that Valencia "continued on this course despite attempts by oncoming drivers to warn him of the danger he was creating." Valencia II, 14 N.Y.3d at 928 (Graffeo, J., concurring); see also id. at 931 (Jones, J., concurring) (noting that Valencia drove "in the direction of oncoming traffic"). -41- Thus, each of the alleged indicia of awareness that the People contend was present in this case – warning signs, oncoming headlights, horns – was also present in Valencia. Indeed, if anything, there were more warning signs in Valencia than here, because other drivers explicitly tried to warn Valencia about the dangers of the course he was pursuing. Nevertheless, this Court found that there was insufficient proof to establish depraved indifference. And this Court’s holding was reached for good reason. In order to find that a defendant deliberately drove the wrong way for miles on a major highway, a jury would have to find that he was suicidal. There are certainly some instances in which a driver can be heedless of the danger to others without also being heedless of the possible harm to himself – for instance, if he is driving in a residential or commercial area with pedestrians present, or if he is deliberately using his car as a weapon against another. But on the open highway, this is impossible. There are no pedestrians to be hurt, and any accident would involve another vehicle. At 60 miles per hour, let alone 70 to 80, a crash would cause severe injury or death to both drivers as well as their passengers. Thus, a highway motorist cannot "fail to care" about grievous harm or death to others without also "not caring" if she herself is seriously injured or killed. The Second Department majority’s response to this factor – to state that the defendant need not have intended to kill himself in order to be guilty of depraved -42- indifference murder (A.6) – is correct, but irrelevant. Defendant does not contend that an intent to commit suicide is necessarily required. Instead, under the conditions of the open highway, the mental state of “not caring” whether others are harmed can only be evinced if one also does not care whether oneself is harmed – i.e., that in order to be depravedly indifferent on the open road, a defendant must not only be homicidally reckless but suicidally reckless. It is possible to not intend to kill oneself and nevertheless not care whether one lives or dies. But there is no indication, in this case, that defendant harbored that attitude toward himself and his sleeping passenger, which under these facts is necessary to a finding that he held the same attitude toward others. As Judge Belen correctly stated, there is no evidence that defendant actually saw the wrong-way signs or that he registered what the oncoming headlights meant. Indeed, the fact that defendant took no evasive action suggests that he was unaware of the danger that faced him and others – that as in Valencia, he "appeared not to know that he was about to crash and never attempted to avoid the accident." Valencia II, 14 N.Y.3d at 931 (Jones, J., concurring). In fact, even Nassau County District Attorney Kathleen Rice – the prosecutor in charge of the office that convicted McPherson – has acknowledged that wrong-way driving can happen accidentally and has urged the State to enhance the safety measures along public highways. See Ann Givens, Rice asks state for ways to prevent wrong- -43- way driving, Newsday, Nov. 22, 2010; Ann Givens, Rice seeks DOT meeting on wrong-way crashes, Newsday, Jan. 4, 2011. Thus, the People themselves, through Ms. Rice, have acknowledged that drunk drivers are inadequately warned that they are going the wrong way, and that this is ultimately an issue of traffic safety rather than deliberate misconduct. Indeed, the sheer number of wrong-way accidents supports a finding that Mr. McPherson's conduct was unintentional; would the People, or the Second Department majority, contend that all these wrong-way drivers did so on purpose? Clearly that is not so, and just as clearly, there is no evidence whatsoever that defendant McPherson made a deliberate choice to drive the wrong way on the Southern State. Nor may the prosecution bridge the evidentiary gap by pointing to the shots fired at the Island Rock Club. This argument must fail for several reasons. To begin with, as discussed at length in Point III, there is insufficient proof that he fired the shots at all. Nobody saw him fire them, the one witness who saw him shortly before was adamant that he "had nothing in his hand," and another individual – his girlfriend, Crystal Greene – was both angry and in a position to fire the shots. Even if it is assumed that defendant did fire the shots, he was already highly intoxicated when he did so, and was consequently unable to appreciate the risks. Like defendant's act of driving, the shots were temporally remote from his becoming 17 Although the Valencia II court affirmed Valencia I on different grounds, it certainly did not overrule this aspect of the Valencia I decision. -44- intoxicated and do not indicate a depraved mind. See Valencia I, 58 A.D.3d at 880.17 Furthermore, defendant did not shoot toward the people in the parking lot; instead, as shown by the fact that only shell casings and no bullets were found in the vicinity, the shots were fired either into the air or away from the crowd. While shooting into the air is no doubt risky, it is done at weddings in many parts of the world, and is not indicative of Feingold depravity in the way that shooting into a crowd would be – especially since, as noted above, defendant's subsequent conduct on the highway showed that he was doing his best to stay alive rather than not caring if death resulted. Finally, the People also pointed to additional evidence of depravity in Valencia. Indeed, Valencia's statement – "I don't know and I don't care" if others were injured – is a confession to a state of mind almost exactly like what was described in Feingold. If even that is not sufficient to push a defendant over the line into depraved indifference, then something as equivocal as the Island Rock shooting (if it was indeed committed by defendant) cannot. And any doubt that may exist after Valencia II is resolved in defendant’s favor by Prindle. The defendant in Prindle clearly was conscious of the danger he was creating, both because he took evasive action by repeatedly swerving to avoid 18 Although Register has been overruled to the extent that it held that depraved indifference was not a mental state, it has never been overruled with respect to its definition of "grave risk." -45- oncoming cars and because he actually collided with a truck before going on to cause the fatal collision with the victim’s car, and he was fleeing from the police, which is a circumstance indicative of not caring if others are harmed. But even on those facts, this Court found insufficient evidence of depraved indifference. If Prindle did not evince a depravedly indifferent mental state, then defendant McPherson certainly did not, and a motion to dismiss on Feingold grounds – if made by his counsel – would have preserved a clear-cut and completely dispositive issue of law. 4. There Was No Grave Risk of Death. And even if the facts of this case were sufficient to evince a depraved mental state – which, for the reasons stated above, it is not – the conviction must still fail for lack of another element: a "grave risk of death." While PL § 125.25(2) does not define "grave risk," the level of danger must be considerably greater than the "substantial risk" required for reckless manslaughter. See People v. Register, 60 N.Y.2d 270, 276-77 (1983) (describing the risk of death necessary to prove manslaughter as a "lesser risk" than that necessary for murder, and describing a "grave risk" as "very substantial") (emphasis in original).18 Examples of such "very substantial" risks include: 1 9 T h e t a b l e i s a v a i l a b l e o n l i n e a t http://www.bts.gov/publications/national_transportation_statistics/html/table_02_18. html. 2008 is the latest year for which statistics are available. This Court may take judicial notice of statistics maintained by government agencies. See Sommers v. Sommers, 203 A.D.2d 975, 976 (4th Dept. 1994) (proper to take judicial notice of government inflation statistics because they are “historical data that are readily and precisely verifiable”); Buffalo Retired Teachers 91-94 Alliance v. Buffalo Board of Educ., 261 A.D.2d 824, 827 (4th Dept. 1999) (census statistics); Weissman v. Bellacosa, 129 A.D.2d 189, 194-95 & n.3 (2d Dept. 1987) (population and economic statistics). 20 Available online at http://www-fars.nhtsa.dot.gov/Main/index.aspx. 2008 is the latest year for which statistics are available. -46- ... fir[ing] into a crowd; driv[ing] an automobile down a crowded sidewalk at high speed; shoot[ing] a partially loaded gun at a person's chest during a game of Russian roulette; abandon[ing] a helplessly intoxicated person on a snowy highway at night; or repeatedly beat[ing] a young child over a period of several days. People v. Gonzalez, 1 N.Y.3d 464, 467 (2004). Drunk driving, albeit certainly not to be condoned, does not pose such a high level of risk. In 2008, the fatality rate for drivers on urban arterial highways was 0.85 per 100 million vehicle miles. See U.S. Dep't of Transportation, Bureau of Transportation Statistics Table 2:18 (2008).19 For all roads, the fatality rate in 2008 was 1.25 per 100 million vehicle miles. See NHTSA, Fatality Analysis Reporting System (2008).20 Statistics show that drivers whose blood alcohol concentration is .15 or more, like 2 1 T h i s p u b l i c a t i o n i s a v a i l a b l e o n l i n e a t http://www.mdt.mt.gov/publications/docs/brochures/safety/mdt_bac_and_you.pdf. Other governmental agencies report the same statistic. 22 To the extent that the People might argue that the gravity of the risk should be measured by some subsequent behavior – e.g., driving the wrong way on the Southern State Parkway – such argument must fail because there is no indication that defendant engaged in this behavior consciously. 23 If this Court were to consider the risk of injury rather than death – a questionable proposition, given that depraved indifference requires utter disregard of a risk of “death or grievous harm” – the nationwide injury rate is 83 per 100 million miles. See Oregon Dep’t of Transportation, Traffic Injuries per 100 Million Vehicle M i l e s T r a v e l e d a t 2 ( 2 0 0 9 ) , a v a i l a b l e o n l i n e a t http://www.oregon.gov/DAS/OPB/docs/APPR08/Agency_Links/45_ODOT_pm2.p df?ga=t. If elevated 25 times due to defendant’s level of intoxication, this would amount to a risk of slightly more than 1 in 50,000 per mile, or 1 in 10,000 for a five- mile journey. If elevated 100 times, the risk would still be approximately 1 in 2500. -47- defendant here, are 25 times more likely than normal to be involved in an accident. See Montana Department of Transportation, BAC and You at 2.21 Taking the higher of the two fatality statistics, this means that defendant's odds of becoming involved in a fatal crash, at the point when he first set out from the Island Rock Club,22 were 37.5 in 100 million per mile, or 187.5 per 100 million for a five-mile journey. This amounts to odds of more than 500,000 to 1 against becoming involved in a fatal accident.23 Indeed, even if this Court were to assume that a motorist with a blood alcohol level substantially above .15 were to have a higher risk of accident – for instance, 100 2 4 A v a i l a b l e o n l i n e a t http://blog.simplejustice.us/2009/02/04/court-rejects-drunken-depraved-indifference. aspx. -48- times more likely than normal – the risk of fatality would still be less than one in 100,000. This is of a far different order than shooting into a crowd, driving down a sidewalk crowded with people or playing Russian roulette (the last of which, at least, has a precisely quantifiable 1 in 6 risk of causing death, and the others likely not much less). As one commentator put it: Relative to the number of people who drink to excess and drive, the chances of someone causing the death of another are quite small. If the risk was grave, there should be dozens of deaths every day from drunk driving, but there isn't. The reality that no one wants to admit is that most drunk drivers make it home without incident, to sleep it off and do it again another day. This isn't a good thing, but it is the reality. Only a small fraction end up in an accident, and an even smaller fraction end up causing serious harm or death. Scott H. Greenfield, Esq., Court Rejects Drunken Depraved Indifference, Simple Justice, Feb. 4, 2009.24 Indeed, to put things in perspective, recent studies have shown that texting while driving is more dangerous than driving drunk. See, e.g., States News Service, AIA Supports Michigan Ban on Texting while Driving, Apr. 29, 2010 (“University of Utah 25 Available on LEXIS, Mega News database. 26 In New York, for instance, VTL § 1225-c(4) provides that use of a mobile telephone to make a call while driving is a traffic infraction punishable by a fine of not more than one hundred dollars. Moreover, the statute only prohibits holding the phone to one’s ear to make a call, and does not prohibit “ holding a mobile telephone to activate, deactivate or initiate a function of such telephone,” such as texting. See VTL § 1225-c(1)(f). Motorists who cause injury or death while texting or talking on cellular phones cannot be charged with vehicular assault or vehicular manslaughter, although if their behavior is criminally negligent or reckless, they may be subject to the standard assault or homicide charges. 27 “[E]ven a very small chance of causing death can fairly be characterized as ‘substantial.’” See Stephen P. Garvey, What’s Wrong with Involuntary Manslaughter?, 85 Tex. L. Rev. 333, 342 (2006). The risk posed by DWI thus satisfies the “substantial” threshold even though, as shown above, it is not “grave.” -49- Professor David Strayer, Ph.D., reports that talking on a cell phone is just as dangerous as drunk driving, and text messaging while driving is twice as dangerous as talking on a cell phone”).25 While an increasing number of jurisdictions ban texting (or talking on cell phones) while driving, such conduct is typically treated as a traffic violation rather than a serious crime,26 and a motorist who becomes involved in a texting accident is not treated as a depraved individual who created a grave risk of death. Again, defendant does not minimize the problem of drunk driving, which has rightly been prohibited by the Legislature. Driving drunk is certainly a "substantial and unjustifiable" risk,27 and a person who causes a fatality while doing so is surely guilty of manslaughter and vehicular manslaughter. Moreover, if the Legislature wished to 28 Indeed, in light of Prindle, supra, it is questionable whether even this type of behavior, let alone defendant McPherson’s, constitutes depraved indifference any longer. -50- create an offense of "vehicular murder," it would be within its rights to do so. However, drunk driving does not pose a sufficiently "grave" risk of death to fit within the crime of depraved indifference murder as it now stands, and stretching the statute to include DWI fatalities would indeed devalue the seriousness of those who beat and starve small children or induce others to play Russian roulette. 5. Other Automobile-Related Depraved Indifference Cases Require Proof of Risk and Depravity Not Present Here. Moreover, the courts have reserved depraved indifference murder – the highest category of non-intentional homicide – for acts that are not merely risky and reckless, but which have a deliberate and callous character not present here. Depraved murder has been characterized as a homicide “in which the actor believes that the probability of death is very high... and the desire he seeks to satisfy in taking that risk is one the law deems especially reprehensible.” See Stephen P. Garvey, What’s Wrong with Involuntary Manslaughter?, 85 Tex. L. Rev. 333, 345 n.56 (2006) (emphasis added). A survey of the cases in which New York courts have found motorists to have acted with depraved indifference bears this out, as they fall into three categories: (1) high speed chases, use of vehicles as weapons, or similar behavior;28 (2) driving through -51- crowded residential areas or non-road surfaces; or (3) cases where the motorist proceeds with his behavior even after striking a person or vehicle. The case law does not encompass situations like the one at bar, where defendant’s “desire” was not to flee from the police or use his car as a weapon but was simply to get himself and his cousin home. Emblematic of the cases in which motorists have been found to act with depraved indifference is People v. Gomez, 65 N.Y.2d 9 (1985). The Court of Appeals described Gomez’ behavior as follows: [D]efendant drove a car... out of a gas station... and entered 10th Avenue at a speed of approximately 40 miles an hour. He then accelerated across 10th Avenue, struck and careened off a parked car and continued traveling north, weaving from lane to lane. As he did so, he struck the left side of a moving vehicle, accelerated to over 50 miles an hour, and mounted the curb of the sidewalk adjacent to a parking lot entrance south of the southwest corner of 46th Street. He then drove the car along the sidewalk at a high rate of speed and struck a boy riding his bicycle, Daniel Calibar, throwing him completely across 46th Street. An occupant of the car testified that at that point he told defendant to apply the brakes, but defendant responded: "No I cannot brake, I cannot put the brakes on any longer. I have killed a person already." Defendant then accelerated his speed further, crossed 46th Street and mounted the opposite sidewalk where several people were standing. He drove up the block on the sidewalk, striking another child riding a bicycle, Rene Mercado, near the corner of 47th Street, and dragging his -52- body approximately 80 feet. [His] vehicle then crossed 47th Street and mounted the curb on the northwest corner. He again sped along the sidewalk at over 50 miles an hour nearly striking several people standing along 48th Street until defendant braked for the first time and the car came to rest. After the car stopped, defendant attempted to escape but he was apprehended and arrested. Id. at 10-11. These facts bear all three of the hallmarks noted above: Gomez’ desire in driving recklessly was to flee punishment, he drove at high speed on residential sidewalks, and he continued this behavior even after being explicitly warned (both by his passenger and by the initial collision with the parked car) that he was putting himself and others at grave risk. The post-Feingold cases in which motorists have been accused of offenses requiring a depravedly indifferent mental state also fall into one or more of the above- described categories. See People v. Goldstein, 12 N.Y.3d 295 (2009) (defendant fled from police, drove at high speed through an active construction site, and admitted seeing flagmen); People v. Garrow, 904 N.Y.S.2d 589 (3d Dept. 2010) (defendant chased his estranged wife at high speed and deliberately sideswiped her vehicle on narrow bridge); People v. Alvarado, 71 A.D.3d 498 (1st Dept. 2010) (driver of stolen car fled from police and engaged in lengthy high-speed chase); People v. Walton, 70 A.D.3d 871 (2d Dept. 2010) (defendant engaged in drag race at 109 miles per hour 29 It should be noted that this Court in Walton addressed only the sufficiency of the indictment, and did not opine as to whether the defendant’s intoxication might amount to a defense at trial. See Walton, 70 A.D.3d at 874. 30 Again, as noted above, any dicta in Wells suggesting that drunk driving is sufficient by itself to constitute depraved indifference have been rejected by the Court of Appeals in Valencia II. -53- leading to passenger being ejected);29 People v. Mooney, 62 A.D.3d 725 (2d Dept. 2009) (defendant drove 70 to 75 miles per hour through residential area during high- speed flight from police and deliberately made U-turn into oncoming traffic in order to shake pursuit); People v. Yeong Sook Shin, 61 A.D.3d 568 (1st Dept. 2009) (defendant drove directly into crowd, didn’t brake or take evasive action, failed to stop even after hitting five people, and admitted that he did this to “show off”); People v. Florance, 58 A.D.3d 887 (3d Dept. 2009) (after an altercation, defendant chased his opponent’s vehicle at 80 miles per hour, threw bottles at the vehicle he was pursuing and deliberately drove head-on at that vehicle); People v. Wells, 53 A.D.3d 181 (1st Dept. 2008) (drunk defendant drove through densely populated area, ran several red lights, sideswiped another car before striking victim, and was warned to his face by another driver but sped off);30 People v. Richins, 29 A.D.3d 1170 (3d Dept. 2006) (defendant led police on a chase through residential city streets at more than 80 miles per hour, and passenger pled with him to stop). -54- In cases where motorists’ behavior has not borne these hallmarks, courts have not hesitated to reverse depraved indifference murder or assault convictions. For instance, in People v. Lazartes, 23 A.D.3d 400 (2d Dept. 2005), the defendant was driving between 85 and 108 miles per hour on a Long Island highway, and witnesses stated that he was engaged in a game of “cat and mouse” with the car he eventually hit. The Second Department nevertheless found his behavior to be “merely reckless” and not depravedly indifferent, citing inter alia the following factors: The speeding occurred on a roadway designed to accommodate greater rates of speed than residential roads, at an hour when lighter traffic conditions predominated, and in an area where the possibility of damage to residences or pedestrians was virtually non-existent. No contact occurred between the defendant's vehicle and any other vehicle before the accident. Id. at 405. Notably, these factors apply equally to the instant case. Moreover, the Second Department also noted, as a mitigating factor, that the defendant was 21 years of age at the time of the offense, which is at least equally applicable to the 19-year-old McPherson. See id. at 401. The Lazartes court also distinguished the case at bar from such cases as People v. Esposito, 216 A.D.2d 317 (2d Dept. 1995) (defendant rammed parked car, attempted to run down pedestrian, used his car as a weapon to run victim off road, and pursued victim at high speeds through residential streets); People v. Legendre, 134 A.D.2d 525 -55- (2d Dept. 1987) (defendant engaged in drag race on crowded Brooklyn street at 5 p.m. with numerous children present); and People v. Keating, 283 A.D.2d 589 (2d Dept. 2001) (intoxicated defendant sped down residential streets and hit several cars before striking decedent). To be sure, the defendant in Lazartes, unlike McPherson, was not drunk. See Lazartes, 23 A.D.3d at 405. As discussed at length above, however, this Court in Valencia II has now held that intoxication – even “extreme” intoxication – is not the type of behavior that nudges otherwise “merely reckless” conduct over the line to depraved indifference. Similar results have been reached in other cases that did not reach the level of reprehensibility exhibited by defendants like Goldstein or Gomez. In People v. Peryea, 2006 N.Y. Misc. LEXIS 4137 (Clinton Co. Ct. 2006), the court dismissed a depraved indifference murder indictment against a highly intoxicated driver who crossed the center line of a wet, unlit highway and struck another vehicle without braking. The court held that “[t]he fact that an individual is driving a vehicle while in an intoxicated condition and, as a result, causes the death of another, cannot, standing alone, sustain an indictment for depraved indifference murder since the crime of Vehicular Manslaughter addresses this circumstance.” Id., *2-3. The Peryea court distinguished the case at bar from others in which intoxicated motorists had driven at extremely high 31 The Peryea court did differentiate the case at bar from one in which the defendant had multiple prior DWIs. Although the court did not elaborate on its reason for doing so, it may be presumed that a motorist with multiple DWI convictions is more aware of the risks of drunk driving than one who is not. In the instant case, defendant McPherson had never been convicted of drunk driving prior to the fatal crash. -56- speeds on residential streets, engaged in high speed chases, and/or were warned by passengers. See id., *4-5. Notably, the court reached this result despite the fact that the defendant had previously been convicted of DWI. See id., *5 (noting the defendant’s prior attendance at a victim impact panel).31 In People v. Gordon, 34 A.D.3d 316 (1st Dept. 2006), the First Department reversed a depraved indifference assault conviction where the intoxicated defendant drove his car in the direction of a victim with whom he had recently had an altercation. In People v. Thacker, 166 A.D.2d 102 (1st Dept. 1991), the court held that it was not depraved indifference where a drunk truck driver lost control of his vehicle and crashed into another car without attempting to brake. Likewise, in People v. France, 57 A.D.2d 432, 434 (1st Dept. 1977), the court emphasized that depraved indifference “requires more than recklessly causing death which could happen, for example, from gross carelessness in motor vehicle operation.” The France court held that a motorist who fled from police at 3 a.m. and struck another vehicle was not depravedly indifferent, holding that such a “fortuitous” collision “was 32 As pre-Register cases, France and Fountain are arguably more consistent with current law than Register-era decisions. Certainly, the France court’s “abandonment of concern” language describes a mental state consistent with Feingold. -57- not as if the defendant, in an effort to elude pursuers, drove his auto into congestion deliberately disregarding other vehicles or pedestrians who happened to block his way.” Id. Additionally, as in the instant case, the defendant in France was driving at a lightly trafficked hour and did not hit any other vehicles or objects before the fatal crash occurred. His behavior thus did not demonstrate “such an abandonment of concern for those around him” as to rise to the level of murder. Id. at 435; accord People v. Fountain, 44 A.D.2d 685 (2d Dept. 1974) (motorist with .23 BAC who drove through red light into intersection at 30 miles per hour, and failed to brake, was not depravedly indifferent).32 The instant case is far closer to Lazartes, Peryea or France – and, for that matter, Valencia II and Prindle – than it is to Gomez or Goldstein. Defendant McPherson did not engage in a high speed chase for the purpose of evading punishment, he did not deliberately use his car as a weapon, he did not drive at high speeds on sidewalks or in crowded residential areas, and he did not receive unmistakable warning of the risks of his conduct through prior collisions. He did not have the added reprehensibility, evil desire and utter disregard for human life that elevates recklessness to depraved -58- indifference. See Mahoney, supra, at 1566-67 (under Feingold, motorists can only be convicted of depraved indifference murder for “purposeful, wanton, immoral conduct” as opposed to “poor judgment or slow reaction time,” and suggesting that intentional driving of a vehicle through a crowd or onto a sidewalk, or aiming it at other vehicles, might qualify). The murder conviction in this case cannot stand and must be reduced to manslaughter in the second degree. 6. The Depraved Indifference Murder Conviction is Inconsistent with the New York Statutory Scheme. Finally, both the New York State Legislature's acts and omissions counsel against a finding of depraved indifference in this case. Far from remaining silent as to the proper punishment of drunk drivers who cause injury or death, the Legislature has enacted and augmented a series of laws to address precisely this subject. In 1983, the Legislature enacted the crimes of vehicular manslaughter (now vehicular manslaughter in the second degree) and vehicular assault (now vehicular assault in the second degree). See PL §§ 120.03; 125.12. These statutes have been amended numerous times since then, most recently in 2006, when the Legislature deleted the culpable mental state of criminal negligence, thus effectively creating a strict-liability crime. See L. 2006, c. 732, § 22. In 1985, the Legislature created enhanced forms of vehicular assault and 33 Defendant McPherson was not prosecuted under PL § 125.14 as it took effect after the collision that is the subject of this case. -59- vehicular manslaughter, which are currently codified as the first-degree versions of both crimes. See PL §§ 120.04; 125.13. Over the years, the Legislature has expanded the reach of these statutes numerous times. In 2006, for instance, the Legislature created four new circumstances under which a drunk driver who caused injury or death could be charged with an enhanced offense: (a) if his blood alcohol level was .18 or above; (b) if he has two or more previous DWI convictions; (c) if he has previously committed a vehicular homicide; or (d) if he causes the death of two or more persons. See L. 2006, c. 736, § 22. It should be noted that defendant McPherson was convicted of first-degree vehicular manslaughter under the .18-or-above provision, which means that he was subject to an enhanced penalty that had recently been enacted precisely to cover situations like his. In 2007 – after Feingold was decided – the Legislature created the new crimes of aggravated vehicular homicide (a Class B felony) and aggravated vehicular assault, with elements identical to those of first-degree forms of vehicular manslaughter and vehicular assault. See L. 2007, c. 345, § 2, enacting PL §§ 120.04-a; 125.14.33 Most recently, in November 2009 – after not only Feingold but Valencia I – the Legislature again amended the vehicular manslaughter/homicide and assault statutes, -60- to provide that enhanced penalties were applicable when the person injured or killed was a child 15 years of age or less. See L. 2009, c. 496, §§ 7-10. This legislation was enacted in response to the tragic incident of July 26, 2009 in which Diane Schuler, driving drunk with her two young children and three nieces in the car, had a head-on collision while speeding the wrong way down the Taconic Parkway, killing eight. See Reuven Fenton et. al., Crash Mom was Fully 'Loaded', N.Y. Post, Aug. 5, 2009. It can thus be seen that the Legislature has been very active in determining the proper penalties for drunk drivers who cause injury or death, and – as evidenced by the 2009 legislation – is capable of acting very quickly when it sees a need for enhanced punishment. Moreover, in enacting the 2007 and 2009 laws, the Legislature must be presumed to have been aware of prior relevant decisions including Feingold and Valencia I. See People v. Robinson, 95 N.Y.2d 179, 184 (2000) ("in amending the statute in 1996, the Legislature was presumably aware of all existing decisions interpreting it"); Arbegast v. Board of Educ., 65 N.Y.2d 161, 169 (1997). Thus, it must be inferred that even knowing that the Valencia I court had overturned a depraved indifference murder conviction based on facts identical to those at bar here, and even in the face of the Taconic Parkway crash with facts far more egregious than these, the Legislature did not see fit to create the crime of "vehicular murder." Instead, it evidently viewed the existing vehicular homicide offenses as sufficient and did not 3 4 T h i s b i l l j a c k e t ma y b e f o u n d o n l i n e a t http://image.iarchives.nysed.gov/images/images/94211.pdf (visited Jan. 28, 2011). -61- consider any corrective measures to be necessary. This view is bolstered by the bill jacket to the 2007 legislation which created the crime of aggravated vehicular homicide.34 The memorandum of Assemb. Harvey Weisberg, for instance, viewed the legislation as creating a necessary "middle ground between vehicular manslaughter and [murder]" for the most serious drunk driving homicides. See Bill Jacket at 6. The introducer's memorandum, drafted by Sen. Charles J. Fuschillo, Jr., described the harmful effects of drunk driving and stated that the new vehicular homicide offense gave "law enforcement and prosecutors... the tools necessary to properly charge and convict criminals who have committed a DWI resulting in personal injury or death." Id. at 7-8 (emphasis added). The New York State Office of Alcoholism and Substance Abuse Services believed that "[a]n essential component of [alcoholism] treatment requires that the patient take responsibility for his or her actions," and that the legislation "provides appropriate penalties for very serious crimes related to drinking and driving." Id. at 14 (emphasis added). Indeed, the memorandum of the District Attorneys' Association itself regarding the 2007 legislation is revealing. The Association viewed the new Class B felony offense as appropriate even in "egregious circumstances." Id. at 15. Moreover, and 35 While amicus did refer to depraved indifference murder prosecutions in "exceedingly rare" cases of drunk-driving homicide, it acknowledged that these cases were "in the past." See Bill Jacket at 15. -62- critically, amicus stated that, in light of "[r]ecent court decisions have so limited the application of the depraved indifference statutes to vehicular crimes as to make them inapplicable," and that "[t]his Bill would repair that apparent anomaly." Id. at 16 (emphasis added).35 In other words, the District Attorneys' Association recognized the "inapplicability" of depraved indifference to vehicular crimes in the wake of Feingold, and viewed an aggravated form of manslaughter rather than an expansion of the murder statute as the appropriate remedy. Thus, given the Legislature's repeated actions in the field of drunk driving homicide, its willingness to take quick action where warranted, and its failure to enact a “vehicular murder” statute in the wake of Feingold or Valencia I (or, for that matter, Valencia II), this Court should find that circumstances such as those at bar in the instant case do not constitute depraved indifference murder. C. Conclusion. In sum, defendant contends (a) that the instant case presented a clear-cut and completely dispositive sufficiency claim that was ignored by his trial counsel; and that (b) even if the claim was not clear-cut at the time of his trial, counsel was obligated to -63- preserve all colorable sufficiency claims during a period of rapid change in the law. Defendant further submits that Valencia II and Prindle are controlling, that the Second Department majority’s attempt to distinguish these cases must fail, and that under these cases – of which one, Valencia II, was decided on functionally identical facts – defendant did not evince depraved indifference to human life. Finally, defendant contends that the requisite “grave risk” of death, and that a depraved indifference murder conviction would be inconsistent with the legislative scheme of this State. Hence, defendant submits that he has satisfied both prongs of the Strickland standard, and has also (and separately) been deprived of meaningful representation under Baldi, and that this Court should this find that his trial counsel’s failure to make a Feingold motion amounted to constitutionally ineffective assistance. POINT II DEFENDANT’S TRIAL COUNSEL WAS OTHERWISE INEFFECTIVE (U.S. CONST. AMEND. V, VI, XIV) Second, defendant contends that counsel made several other errors which, either singly or in combination, satisfy both the Strickland and Baldi standards. To begin with, in addition to his failure to preserve a meritorious Feingold argument (see Point I above), counsel ignored another "clear cut and completely dispositive" legal issue by not moving to dismiss or reduce the weapon possession count based on insufficient -64- evidence that defendant possessed a loaded weapon. As shown in Point III below, such a motion would have resulted in dismissal and, therefore, the failure to make it cannot be justified by any conceivable strategic consideration. Clearly, the right to effective representation includes the right to assistance by an attorney “who is familiar with, and able to employ at trial basic principles of criminal law and procedure.” People v. Droz, 39 N.Y.2d 457, 463 (1976). In this respect, the instant case is similar to People v. Hoyte, 185 Misc.2d 587 (Sup. Ct., Bronx Co. 2000), aff’d, 294 A.D.2d 263 (1st Dept. 2001), where the court found that counsel was ineffective in failing to preserve the issue of whether there was insufficient evidence to establish that defendant had knowledge of the weight of drugs in accordance with People v. Ryan, 82 N.Y.2d 497 (1993). In Hoyte, as in the instant case, the defendant’s counsel “candidly admitted that he was unaware of the applicability of Ryan to the present matter and that had he been so aware he would have ‘absolutely’ requested the appropriate charge on the knowledge requirement as mandated by that case.” Hoyte, 182 Misc. 2d at 590. The court found that counsel’s unfamiliarity with Ryan was “extremely troubling” and, citing Gray, found counsel to be ineffective by “his failure to preserve this strong issue for appeal.” Id. at 592, 594. In affirming this decision, the First Department agreed that “counsel's lack of awareness of the applicability of Ryan seriously affected the fairness 36 The Jelinek court did not reach this ineffective assistance claim because it was procedurally barred, but found that trial counsel’s failure to preserve the sufficiency issue was “troubling” and that “counsel did, arguably, perform below the constitutional standard for effective representation when he failed to object to the sufficiency of the evidence.” Jelinek, 247 F. Supp. 2d at 293-94. -65- of the proceedings as a whole.” See People v. Hoyte, 294 A.D.2d 263 (1st Dept.2001). Likewise, in Jelinek v. Costello, 247 F. Supp. 2d 212, 271 (E.D.N.Y. 2003), the Eastern District of New York noted that “[f]ailure to move for an order of dismissal or to preserve a ‘strong’ claim of insufficiency of evidence for appeal may merit a finding that counsel's performance was constitutionally ineffective” (emphasis added).36 Moreover, although a defendant with an unpreserved sufficiency claim “could still request that the Appellate Division apply their ‘interest of justice jurisdiction,’ there is a substantial difference between an appeal based on a preserved point and one where the appellate court has the power to address an issue, if it decides to do so, ‘in the interest of justice.’” Hoyte, 185 Misc. 2d at 594; see also Turner, 5 N.Y.3d at 483 (trial counsel’s failure to preserve meritorious statute of limitations argument for appeal was ineffective). Moreover, this is a case in which counsel's ineffectiveness is apparent from the main record. New York courts have held that claims of ineffective assistance based on failure to make a trial motion to dismiss can and indeed must be raised on direct appeal. People v. Gutierrez, 57 A.D.3d 1006 (2d Dept. 2008); People v. Pacheco, 50 A.D.3d -66- 1063 (2d Dept. 2008). Furthermore, it is clear from the record that counsel was actually aware of the Feingold issue – and that he was also informed of it by the court – and that he opened and summed up on that issue. Thus, counsel did not make a strategic decision to forgo the Feingold claim – in fact, he actively pursued it – and his failure to make a trial motion on this ground can only be explained by the fact that he got carried away with his frivolous argument about the identity of the corpse. Where, as here, there is "[e]verything to gain and nothing to lose" by making a trial motion, any failure to do so is per se unjustifiable. People v. Gil, 285 A.D.2d 7, 12-13 (1st Dept. 2001); see also People v. Donovan, 184 A.D.2d 654, 655 (2d Dept. 1992). Counsel was also ineffective in another way: by pursuing a defense strategy based on misidentification of the victim. As the court below correctly pointed out, this is not a valid strategy because the victim's identity is not an element of murder. See People v. Barbaran, 118 A.D.2d 578, 579-80 (2d Dept. 1986). Moreover, in pursuing this strategy, counsel deliberately elicited gruesome testimony about the appearance of the charred corpse and voluntarily admitted graphic crime scene photographs, with obvious prejudice to the defendant. See People v. Stevens, 76 N.Y.2d 833, 835 (1990). While these risks might have been worth taking in support of a valid trial strategy, they were not worth taking in support of an argument that, even if successful, would not have negated the elements of the crime. -67- Indeed, so enamored was counsel of the corpse-switching argument that he summed up on it even after the court told him that the victim's identity was not an element. By doing so – and by, inevitably, having the court instruct the jury that he was wrong – counsel destroyed the credibility of defendant's case. Indeed, making this argument, which essentially depended upon calling the victim's sister a liar, may well have offended the jury. This Court should thus find that counsel's errors – both singly and combined, see People v. Miller, 11 A.D.3d 729, 730 (3d Dept. 2004) (cumulative effect of errors may require relief even if each alone would not) – rise to the level of ineffective assistance and require a new trial. POINT III THE EVIDENCE OF DEPRAVED INDIFFERENCE MURDER AND SECOND-DEGREE WEAPON POSSESSION WAS LEGALLY INSUFFICIENT (U.S. CONST. AMEND. V, XIV) Finally, this Court should find that the evidence at trial was insufficient to prove defendant's guilt of either depraved indifference murder or second-degree criminal possession of a weapon. Defendant acknowledges that neither sufficiency issue was preserved by his trial counsel and, therefore, that this Court’s decision in People v. Gray, 86 N.Y.2d 10 (1995), poses a bar to review. Defendant submits, however, that this Court should overrule Gray and hold that even a generalized trial motion to dismiss -68- is sufficient to preserve an issue of law as to the sufficiency of the evidence. This is the rule in the Federal courts, which hold that a sufficiency issue is preserved as long as any trial motion to dismiss was made, regardless of whether that motion was made on the same grounds pressed on appeal. See, e.g., United States v. Gjurashaj, 706 F.2d 395, 399 (2d Cir. 1983) ("[t]he defendant need not specify the ground of the [Rule 29] motion in order to preserve a sufficiency claim for appeal"); accord United States v. Allen, 127 F.3d 260, 264 (2d Cir. 1997) (sufficiency issue may be raised for the first time in post-trial Rule 29(c) motion, and issues raised in post-trial motion need not be the same as those raised at trial). In Gjurashaj, the Second Circuit stated: Both defendants moved pursuant to Fed.R.Crim.P. 29(a) for judgments of acquittal at the close of the evidence, and the very nature of such motions is to question the sufficiency of the evidence to support a conviction. See United States v. Jones, 174 F.2d 746, 748 (7th Cir.1949) (motion for acquittal "is a challenge to the Government in the presence of the court that the Government has failed in its proof"); 2 C. Wright, Federal Practice and Procedure § 466, at 654 (1982). Further, the defendant need not specify the ground of the motion in order to preserve a sufficiency claim for appeal. United States v. Brothman, 191 F.2d 70, 72-73 (2d Cir.1951); United States v. Cox, 593 F.2d 46, 48 (6th Cir.1979); United States v. Jones, supra, 174 F.2d at 748; 8A Moore's Federal Practice 29.03[1], at 29-7 (2d ed. 1982) ("[T]he grounds for the motion need not be stated with specificity, at least not unless the government demands such a statement." (footnote omitted)); 2 C. Wright, supra, 37 The Third Circuit has likewise noted that the plain error standard applies "only … when a defendant failed to file a Rule 29 motion completely," and that "to apply it when the motion is vague would be a marked expansion." United States v. Basley, 357 Fed. Appx. 455, 459 (3d Cir. 2009), citing Gjurashaj and United States v. South, 28 F.3d 619, 627 (7th Cir. 1994). -69- § 466, at 653. Thus, when a defendant moves for acquittal, even without specificity as to the grounds, it is incumbent upon the government to review its proof as to the facts required to establish each element of each offense alleged. Its neglect to do so is not a charge upon the defendant. Gjurashaj, 706 F.2d at 399 (emphasis added); accord United States v. Hoy, 137 F.3d 726, 729 (2d Cir. 1997) (sufficiency claim was preserved, and need not be reviewed for plain error, where the defendant “made general motions pursuant to Rule 29 for acquittal, generally arguing that the Government presented insufficient evidence to convict [him]”).37 Defendant submits that the Federal rule has merit, and should be adopted as New York law, because sufficiency of the evidence is a unique form of appellate claim. It is well settled that the purpose of preservation is to alert a court to an error at a time when it can be corrected. People v. Robinson, 36 N.Y.2d 224, 228 (1975). But where the People’s case is based on legally insufficient evidence, this is not an “error” that can be corrected by the trial court. A legal sufficiency claim is not like a claim of error in the admission of evidence or the delivery of jury instructions, because it is incumbent upon the People – not the trial judge – to prove every element of the crime. If they -70- have not done so, this is not something that the court either can or should correct. Moreover, the Gray court was incorrect in holding that a general motion to dismiss “fails at [the] task” of bringing the defendant’s claim to the trial court’s attention. See Gray, 86 N.Y.2d at 20. Instead, as the Gjurashaj court made clear, “the very nature of [trial motions to dismiss] is to question the sufficiency of the evidence to support a conviction,” and the making of one – even if general – alerts the court to the fact that the sufficiency of the Government’s proof is in question. Moreover, the court will have been present for the entire trial, and will know the elements of the offense and be able to assess whether the proof as to any element thereof is lacking. With respect to sufficiency claims, there is nothing that the parties know that the trial court does not. As such, this Court should find that a general motion to dismiss is a sufficient protest by the defendant to preserve an issue of law as to all counts under CPL § 470.05 and to constitute a basis for invoking this Court’s jurisdiction under N.Y. Const. art. VI, § 3(a). Likewise, the Gray court’s holding that “a timely objection alerts all parties to alleged deficiencies in the evidence and advances the truth-seeking purpose of the trial,” see Gray, 86 N.Y.2d at 21, is misplaced. Certainly, a timely objection is necessary – thus, a defendant who made no motion to dismiss at all should not be deemed to have preserved a sufficiency claim. The Gjurashaj rule does not dispense -71- altogether with the need to make a trial motion to dismiss. However, such a motionneed not be detailed in order to alert the People – who are well aware of the elements of the offense and of the evidence that they have presented – that they must assess the record against the elements of the crime and determine whether any proof is lacking. Indeed, much of the Gray court’s analysis hinges on the need for a timely protest, which it appears to treat as synonymous with a specific protest, when in fact the two are very different issues. Moreover, defendant submits that the equities favor a relaxation of the strict Gray rule. Motions to dismiss are made orally, in the heat of trial, often based on weeks or months of evidence; thus, it is often impossible for a trial attorney to frame his objections with the surgical precision of which an appellate attorney, who has read the record in an atmosphere of calm deliberation, is capable. Moreover, since the sufficiency of the evidence goes directly to the defendant’s guilt or innocence – unlike procedural errors, which impinge only indirectly on the fundamental question of guilt – counsel in favor of review on appeal even where counsel may have missed a pertinent point while framing his protest during the heat of trial. Defendant thus contends that this Court should overrule Gray and adopt Gjurashaj, and should hold that his trial motion to dismiss, although not raising the issues set forth herein, is sufficient to preserve an issue of law and invoke this Court’s jurisdiction. -72- Turning to the merits, defendant submits that the insufficiency of the evidence of depraved indifference murder is thoroughly explicated in Point I above, and defendant will not belabor the record by reciting it at length here. Moreover, the evidence of weapon possession is also lacking. This offense, as charged to the jury, required proof that defendant possessed a loaded firearm with intent to use the same unlawfully against another. See PL § 265.03(1)(b). The jury was also instructed on the permissive presumption created by PL § 265.15(4), under which possession of a device "designed, made or adapted for use primarily as a weapon" is presumptive evidence of intent to use it against another. Although the presumption would permit the jury to infer intent from possession of a loaded firearm, a conviction still requires threshold proof that the weapon was loaded. It is undisputed that the gun at issue in this case was unloaded when it was found in defendant's car; thus, the conviction cannot rest on his possession at that time. Presumably, the People will argue that defendant's possession of a loaded gun was proven by the shots fired at the Island Rock Club. However, the People's proof that defendant actually fired those shots is entirely circumstantial, and as shown below, there are insufficient facts from which his possession of a loaded weapon at that point can be inferred. The test for legal sufficiency – i.e., whether the evidence, viewed in the light -73- most favorable to the prosecution, is sufficient for a rational trier of fact to find guilt beyond a reasonable doubt – applies to both direct and circumstantial evidence. People v. Ficarrota, 91 N.Y.2d 244, 249 (1997). However, where, as here, the evidence against the defendant was entirely circumstantial, this Court has emphasized the need to scrutinize whether the jury's verdict was supported by a permissible chain of logical reasoning: [C]ircumstantial evidence is as nothing unless the inferences to be drawn from the circumstances are logically compelling. The danger, therefore, with the use of circumstantial evidence is that of logical gaps -- that is, subjective inferential links based on probabilities of low grade or insufficient degree -- which, if undetected, elevate coincidence and, therefore, suspicion into permissible inference. People v. Ford, 66 N.Y.2d 428, 441 (1986), citing People v. Cleague, 22 N.Y.2d 363, 367 (1968). Thus, a case built upon circumstantial evidence is insufficient where "the gaps in the People's evidence can only, impermissibly, be filled by conjecture." People v. Moore, 291 A.D.2d 336, 339 (1st Dept. 2002) (citing Ford). Moreover, "[c]ircumstantial evidence is of no value if consistent with either the hypothesis of innocence or the hypothesis of guilt... even if the [latter] will account for all the facts proven." People v. Montanez, 41 N.Y.2d 53, 57 (1976). -74- In this case, the evidence fails to surmount this high barrier. As discussed in the Statement of Facts, there were no eyewitnesses to the shots being fired, and the witnesses disagreed even as to how many shots they heard. The sole witness who saw defendant during the period immediately before the shots, Delroy McCalla, was looking down when the gun went off. Moreover, although McCalla saw defendant go to the trunk of his car, he was adamant that defendant "had nothing in his hands" the entire time. There is thus no witness who placed the gun in defendant's hands during the time before he left the club. Moreover, there is at least one other individual who could have fired the shots. McCalla testified that, just before the shots were fired, he heard defendant's girlfriend Crystal Greene having a verbal dispute with him. The evidence is just as consistent with Greene – who was also highly intoxicated – picking up the gun and firing the shots due to her anger at the defendant, as it is with defendant firing them. As such, any inference presented by the circumstantial evidence is not sufficiently compelling to support a conviction. See Montanez, 41 N.Y.2d at 57; accord People v. Karpowski, 99 A.D.2d 118, 124 (1st Dept. 1984) (reversal required where trial evidence was "composed of inferences outweighed by hypotheses which are equally consistent with innocence as with guilt"). In the court below, the People relied on the testimony of Delroy McCalla to -75- establish the gun charge, arguing that he heard shots "moments before defendant drove away" and that he saw defendant leaning over the trunk of the car and then "looking up and down" while sitting in the passenger seat. However, this same witness repeatedly stated that defendant took nothing from the trunk (A.269) and that he saw defendant's hands throughout this period and that there was nothing in them. (A.270-71, 273, 280- 81). If, as the prosecution tried to imply, Mr. McPherson was getting ammunition from the trunk and then loading the weapon in the passenger seat, then McCalla certainly would have seen the gun in his hands during that time. Given this, and given that there were many other things in the trunk that defendant could have been getting, the circumstantial inferences to be drawn from McCalla's testimony do not logically exclude all hypotheses besides guilt. The prosecution also errs in discounting the presence of another person, defendant's girlfriend Crystal Greene, who was also angry and was equally capable of firing the shots. In contrast to defendant, who McCalla described as "a little bit" angry (A.264, 280), Greene had argued with both defendant and McCalla, had been manhandled by McCalla in such a way that bystanders threatened to call the police, and was "yelling" at defendant just before the shots were fired. (A.271-73, 277, 879). She was in the immediate vicinity of defendant and his vehicle at this time (A.274, 278), and hence had both the motivation and the ability to fire the shots. 38 It should be noted that, at nightclubs such as the Island Rock, male patrons are commonly frisked for weapons while women are not. -76- Respondent claimed that, in order to any scenario in which Greene shot the weapon but defendant did not possess it while loaded "would require that Green[e]... grabbed an unloaded pistol from defendant or his car, loaded it, fired it, unloaded it, and only then returned it to defendant." In fact, a much simpler and more plausible scenario could also have played out: Greene had the weapon in the first place, pulled it out of her own pocketbook or clothing, fired until the magazine was empty, and then threw the unloaded gun onto the passenger seat.38 This set of facts is not only credible, and fully exonerates defendant of possessing a loaded weapon, but matches McCalla's testimony much closer than the People's theory does – it explains why McCalla saw nothing in defendant's hands. Given the evidence at trial, a jury would have to flip a coin to determine whether defendant or Greene fired the shots, and whether defendant possessed the weapon at any point beforehand. Thus, "the gaps in the People's evidence can only, impermissibly, be filled by conjecture." People v. Moore, 291 A.D.2d 336, 339 (1st Dept. 2002), citing People v. Ford, 66 N.Y.2d 428, 441 (1986); accord People v. McInnis, 179 A.D.2d 781, 782-83 (2d Dept. 1991) (where three guns were displayed and witness saw one go off but could not state whether the others were loaded, -77- conviction was reversed). Indeed, it should be noted that “if the evidence viewed in the light most favorable to the prosecution gives equal or nearly equal circumstantial support to a theory of guilt and a theory of innocence, then a reasonable jury must necessarily entertain a reasonable doubt.” United States v. Glenn, 312 F.3d 58, 70 (2d Cir. 2002) (emphasis added). "It would not satisfy the Constitution to have a jury determine that the defendant is probably guilty." United States v. Hawkins, 547 F.3d 66, 71 (2d Cir. 2008) (emphasis in original). This is precisely a case where the logical gaps in the evidence are too great to sustain a conviction, and defendant submits that this Court should accordingly dismiss the weapon possession count as well as the count of depraved indifference murder. CONCLUSION In light of the foregoing, this Court should grant the instant appeal, vacate defendant's murder and weapon possession convictions, dismiss those charges or reduce them to lesser offenses supported by the proof, and remand with instructions to resentence defendant as to all counts of which he still stands convicted. Dated: New York, NY October 25, 2012 _________________________ JONATHAN I. EDELSTEIN Of Counsel: Robert M. Grossman