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Penal Law § 125.25(2)

A New York Criminal Lawyer said that, on May 3, 1991, defendant was approached by the drug dealer on West 151st Street in Manhattan. The drug dealer asked defendant to sell him $8 worth of crack. Defendant insisted that the drug dealer wait for another buyer to come along because he did not want to retrieve such a small amount of drugs from his supply. When the drug dealer persisted, defendant threw his $8 on the ground and a fight broke out. During the fight, defendant left to retrieve a semiautomatic gun from an adjacent building while defendant’s associate resumed the fight with the drug dealer. When defendant returned with the pistol, the drug dealer fled into the lobby of a nearby apartment building, located at 528 West 151st Street.

A New York Criminal Possession of a Weapon Lawyer said that, a bystander and building resident both testified that they were in the process of trying to unlock the interior door leading in from the lobby when the drug dealer ran into the lobby, bleeding and upset, and asked them to hurry. Moments later, defendant approached the entrance to 528 West 151st Street, stood outside the exterior door of the building, pointed his weapon through a missing windowpane in the door, and fired four rounds into the lobby, and then immediately fled the scene. The building resident escaped unharmed, the bystander suffered a non-lethal gunshot wound to the waist, and the rug dealer died in the hospital as a result of one bullet penetrating his torso. The building resident testified that the lobby was well-lit and she could clearly identify defendant’s upper body and face. Four spent .25 caliber shells were recovered from the building lobby.

A New York Gun Crime Lawyer said that, after an initial investigation, detectives were unable to locate defendant for several years. The case was reopened on April 9, 1995, when a former neighborhood resident was arrested for shoplifting. He indicated that he had witnessed a shooting a few years prior on West 151st Street. With his assistance, the detectives located defendant in April 1995. Defendant was charged with, inter alia, twin counts of both intentional and depraved indifference murder. He was acquitted of intentional murder and convicted of one count of depraved indifference murder. On appeal, defendant argues that the only reasonable view of the evidence supports a finding that the “execution-style” killing was clearly intentional, and that there is no set of facts that would indicate that the defendant committed the gun crime with “reckless disregard.” He further asserts that, pursuant to the law at the time, he objected to the trial court’s submission to the jury of the depraved indifference count together with the intentional murder count, and that the refusal of the court to withhold the depraved indifference count from the jury deprived him of his state and federal constitutional rights to a fair trial. Hence, defendant argues that the depraved indifference murder count must be dismissed and his conviction reversed.

The issue in this case is whether defendant’s depraved indifference murder count must be dismissed and his conviction be reversed.

As a threshold matter, defendant preserved only his general claim that the trial evidence supported a verdict of intentional murder and not a finding that he committed a gun crime with “reckless disregard.” He did not voice any objection to the court’s instructions to the jury on the elements of the crime of depraved indifference murder, and he raises the constitutional aspects of his claim for the first time on appeal. Nor did he assert that depraved indifference is a culpable mental state which is the currently applicable law. Hence, his claim as to the insufficiency of evidence supporting a finding of depraved indifference murder must be evaluated according to the court’s charge as given without objection.

This well-established precedent notwithstanding, the dissent contends that defendant need not object to the instructions given to the jury since “logically, a defendant’s objection to the submission of an offense to the jury encompasses any instructions given to the panel to enable it to consider such offense.” Of course, the dissent does not cite to any legal authority for this proposition since none exists. However, as recently as last month, three judges of the Court of Appeals rejected an indistinguishable preservation argument.

Consequently, the Register standard, which was the basis of the jury charge in this case, informs our sufficiency analysis and conclusion that the verdict was based on legally sufficient evidence and was not against the weight of the evidence.

According to Penal Law § 125.25(2), a person commits depraved indifference murder when “under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.” The Penal Law further states that one acts recklessly “when he is aware of and consciously disregards a substantial and unjustifiable risk”.

The jury was instructed in light of then-applicable law that the People were required to prove (1) that defendant shot a pistol at the victim thereby creating a grave risk of death to another person; (2) that defendant was aware of this substantial and unjustifiable risk; (3) that defendant consciously disregarded the risk that death would result; (4) that defendant’s conscious disregard of this risk constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation; and (5) that the circumstances surrounding defendant’s reckless conduct were so brutal, callous, extremely dangerous and inhumane as to demonstrate an attitude of total and utter disregard for the life of endangered persons.

The court finds that the People met their burden. Defendant is responsible for killing one victim, as a result of one of the four bullets penetrating his torso, and injuring another with a second bullet after shooting into a confined space occupied by three people. As the People correctly assert, this is a quintessential example of depraved indifference murder. The evidence supports the reasonable view that, either defendant shot into a group of people not aiming at any one individual in particular, or that he aimed at one individual in an area where others were present.

In this case, the People established that two of defendant’s four shots ended up lodged in the wall, and the record indicates that the shots were fired in an erratic and indiscriminate manner which denotes anything but an “execution-style killing.” Thus, defendant’s reckless conduct of firing rounds into a small vestibule occupied by three people rises to the level of depraved indifference. The fact that one of the bystanders was shot supports the conclusion that defendant was not acting with intent to cause the victim’s death but with a total and utter disregard for the life of either of the bystanders trapped in the vestibule with the intended target, the drug dealer.

Indeed, the testimony suggests that when defendant fired he could have easily singled out his alleged victim in the small vestibule area. Evidence at trial established that the exterior door was not locked and was missing its glass windowpane. Defendant could easily have moved in much closer and taken better aim at a body part that would ensure achieving his intention of killing the drug dealer. He was unarmed as were the two bystanders, and defendant could have ordered the bystander and the building resident to get out of the way. Defendant did not do so.

Moreover, defendant could have chosen not to fire the gun when the drug dealer pulled the bystander in front of him as a shield, or, as reasoned above, he could have moved in closer for a better shot and ordered the bystander to get out of the way. Instead he discharged the gun without any regard as to whom he was shooting. In other words, he appeared indifferent as to whom he might kill. While it is clear that the drug dealer was the object of his anger and of defendant’s pursuit, the jury heard no evidence that defendant intended to kill him. The record does not reflect that defendant said anything to that effect or that he declared any intention to kill the victim rather than merely to frighten him off or to make a showing of his control over the situation. Nor did he enter the vestibule after the shooting to make sure that he was dead.

Finally, in direct contraindication of an intentional killing, this is not a case where the killing was done in a one-on-one fashion, at point-blank range, or a case in which the defendant shot the victim once in the chest, approached to within an arm’s length and shot the victim in the face, then shot the victim twice in the back and six more times in the head from six inches away. This type of deliberate and repetitive action is in stark contrast to defendant’s action in this case. Hence, nothing on the record warrants setting aside the jury’s conclusion that defendant acted with depraved indifference rather than intentionally.

The court has considered the remaining issues raised by the defendant, and find them also to be without merit. The court properly denied defendant’s motion to dismiss the indictment, made on the ground of pre-arrest and pre-indictment delay. The delay was satisfactorily explained as the product of investigative difficulties, specifically that the defendant left the jurisdiction after the shootings. Moreover, the defendant did not establish prejudice.

The court also properly exercised its discretion in granting the People’s request for a brief delay in disclosing the existence of a newly discovered witness who made a photographic identification of defendant shortly before opening statements. The witness articulated a fear of the defendant and his family which justified a delay so that she could be relocated before her identity was disclosed. Again, the defendant was not prejudiced by the delay, which amounted to a single day. He received a mid-trial Wade hearing, and his claim that the disclosure delay adversely impacted his trial strategy is unsubstantiated.

None of defendant’s remaining contentions warrants reversal. The court properly denied defendant’s motion to suppress his statement to the police. There is no basis for disturbing the court’s credibility determinations, which are supported by the record. Defendant did not preserve his claim that a detective engaged in the functional equivalent of pre- Miranda interrogation, or any of his challenges to the People’s summation, and we decline to review them in the interest of justice. Defendant’s ineffective assistance of counsel claim is unreviewable on the present, unexpanded record. Finally, we perceive no basis for reducing the sentences.

Accordingly, the court held that the Judgment of the Supreme Court, New York County, rendered December 5, 1995, convicting defendant, after a jury trial, of murder in the second degree, assault in the second degree, and criminal possession of a weapon in the second degree, and sentencing him to concurrent terms of 22 1/2 years to life, 2 1/3 to 7 years and 5 to 15 years, respectively, affirmed.

Under Penal Law § 125.25(2), a person commits depraved indifference murder when “under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.”

If you are charged of a gun crime and murder committed in relation to the above-mentioned law, you will need the help of a New York Criminal Attorney and New York Possession of a Weapon Attorney at Stephen Bilkis and Associates in order to handle your day in court.

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