Tagged: N.Y. Penal Law § 125.25 (2)

NY Court of Appeals Issues an Opinion on Depraved Indifference

POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

The New York State Penal Code provides serious penalties in situations where a defendant’s reckless conduct toward others manifests “depraved indifference to human life” and exposes a victim to “a grave risk of death.” When these elements can be proven and the victim dies as a result, a defendant can be subject to conviction for second-degree murder, pursuant to N.Y. Penal Law § 125.25(2) (McKinney 2015). When the victim does not die, the defendant can be subject to conviction for reckless endangerment in the first degree, pursuant to N.Y. Penal Law § 120.25 (McKinney 2015).

In an opinion issued on February 19, 2015, the N.Y. Court of Appeals addressed the latter situation in the case of People v. Williams, 2015 N.Y. Slip Op. 01486 (Feb. 19, 2015). In this case, a prosecutor pursued a first-degree reckless endangerment charge against Mr. Williams because he did not disclose the fact that he knew he was HIV positive to a male partner with whom he had unprotected anal intercourse on several occasions and because Mr. Williams responded affirmatively to his partner’s questions about whether it was safe to engage in unprotected sex. The defendant’s partner subsequently became very ill, was diagnosed as HIV positive, and was put on a lifetime regimen of medications to stave off AIDS.

As noted in my previous post, in recent years the Court of Appeals has restricted the application of depraved indifference charges, finding that prosecutors often pursued such charges when not merited. Of particular relevance to the recent Williams case is this Court’s decision in People v. Suarez, 6 N.Y.3d 202, 844 N.E.2d 721, 811 N.Y.S.2d 267 (2005) holding that when a defendant’s reckless conduct endangers only one person, a prosecutor must show that the defendant exhibited “wanton cruelty, brutality or callousness directed against a particularly vulnerable victim, combined with utter indifference to the life or safety of the helpless target of the perpetrator’s inexcusable acts.”

In Williams, the grand jury returned an indictment on one count of first-degree reckless endangerment, N.Y. Penal Law § 120.25, and on one count of third-degree assault, N.Y. Penal Law § 120.00(2) (McKinney 2015). Upon defendant’s motion to dismiss both counts arguing legally insufficient evidence, the Supreme Court denied the motion as to the assault charge but reduced the reckless endangerment charge from first degree to second degree. The prosecutor appealed and the Appellate Division, Fourth Department, affirmed holding that viewing the evidence in the light most favorable to the prosecution, (1) the evidence was legally insufficient to support proof of the mental state requirement of depraved indifference and (2) given favorable medical advances in treatment of HIV positive patients, the defendant’s conduct did not expose the victim to a grave risk of death.

On further appeal, several civil rights, public health, and HIV advocacy organizations submitted, or joined in, amicus briefs supporting the defendant. The Center for HIV Law and Policy, on behalf of itself and several other groups, argued in its brief that “[u]sing the criminal law to prosecute and penalize people living with HIV for conduct that would be legal if they did not get tested or know their status reinforces prejudice and undermines important government-funded HIV testing, treatment, and prevention efforts.”

The Court of Appeals affirmed the Fourth Department’s decision and held that although it had no doubt that “defendant’s conduct was reckless, selfish and reprehensible,” the evidence presented to the grand jury was insufficient to support a prima facie case that the defendant acted with depraved indifference. Reviewing the testimony presented to the grand jury, the Court found that there was no evidence that “defendant exposed the victim to the risk of HIV infection out of any malevolent desire for the victim to contract the virus, or that he was utterly indifferent to the victim’s fate.”

Given its holding on the failure of proof regarding the required mental state element, the Court of Appeals explicitly declined to address the “grave risk” element of whether, in light of modern medical science, HIV infection creates a grave risk of death.

Related Reading:

NY Court of Appeals Issues a Ruling on Depraved Indifference Murder

POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

Reviewing a case of egregious recklessness that caused the death of an innocent victim, a 5-2 majority of the Court of Appeals reversed a conviction for depraved indifference murder and cautioned that efforts to prosecute a defendant on this charge must “fit within the narrow category of cases wherein the facts evince a defendant’s utter disregard for human life.”

In April 2009, Jose Maldonado hot-wired and stole a minivan in the Greenpoint section of Brooklyn. In a determined effort to avoid capture by police pursuing him through streets in a mixed residential and commercial area, during a five-minute period Maldonado greatly exceeded the speed limit, drove through several red lights, repeatedly swerved into opposing traffic lanes, and repeatedly drove the wrong way on one-way streets. After one pedestrian narrowly managed to dive away to escape being struck by the van, which did not brake, Maldonado drove, again without braking, into another pedestrian, Violet Kryzak (aged 37), who was crossing Manhattan Avenue with the traffic light in her favor. The van’s windshield on the passenger side showed signs of impact with Ms. Kryzak’s body.

Maldonado said he thought he “hit the girl in the hand or something.” Apparently, it was not her hand that he smashed into because impact with the stolen van, which witnesses estimated to be going at least 70 mph, catapulted Ms. Kryzak’s body into the air, to land more than 160 feet from the point of collision. Without stopping to seek help for Kryzak (who died at the scene), Maldonado continued his effort to avoid capture, speeding north in a southbound lane with the van’s windshield caved in on the passenger side. Apparently realizing shortly afterwards that he could not escape with the van, he crashed it into a car, got out, and ran away. This last attempt to avoid capture was unavailing, thanks to civilians who grabbed him and held him for the police.

Among other charges, the prosecutor sought to convict Maldonado for second-degree murder, pursuant to N.Y. Penal Law § 125.25 (2), on the basis that Maldonado recklessly created a grave risk of death to another person and caused such death in circumstances that evinced his depraved indifference to human life [DIM]. A jury unanimously agreed, and the Appellate Division unanimously affirmed the conviction.  It held that the evidence was legally sufficient to support defendant’s conviction for depraved indifference murder and that, upon independent review, the conviction was not against the weight of the evidence.

Maldonado sought review by the Court of Appeals. Maldonado’s appellate counsel conceded that Maldonado’s conduct was reckless but argued that it did not meet the requirements for DIM established in the Court’s recent precedents.

On July 1, 2014, a majority of the Court agreed. Quoting one of its precedents, the Court stated that “a depraved and utterly indifferent actor is someone who does not care if another is injured or killed” by his reckless conduct. The Court held that “assuming the People proffered evidence indicating that defendant was aware of and disregarded the substantial risk of injury or death caused by his driving, they failed to submit evidence establishing that defendant did not care whether grievous harm resulted.”

Despite applying the applicable standard to review the record in the light most favorable to the prosecution, the Court found that “defendant sought to mitigate the consequences of his reckless driving” by at times swerving to avoid crashing into other vehicles. The Court credited defendant for such “conscious avoidance of risk,” which it stated was “the antithesis of a complete disregard for the safety of others.” The Court found that, despite the fatal collision with Violet Kryzak, the purpose of Maldonado’s extremely dangerous driving tactics was simply “to speed his flight and to avoid crashing into other vehicles or pedestrians.” According to the Court’s review, the record showed “no indication that [Maldonado’s] conduct … was motivated solely by his intent to evade capture, regardless of the risk to human life.” Therefore, the Court ordered that, given Maldonado’s “conscious avoidance of risk” during his concededly reckless driving in a desperate effort to avoid capture for his crimes, his killing of Violet Kryzak rendered him guilty only of second-degree manslaughter.

In a dissenting opinion joined by Judge Graffeo, Judge Pigott noted that after Maldonado narrowly avoided collision with one pedestrian and then struck and killed Ms. Kryzak, he did not cease his reckless conduct “when he had the opportunity to display that he cared whether or not he might strike a pedestrian.” Applying the required standard of review, Judge Pigott stated that there was “a valid line of reasoning and permissible inferences from which a rational jury” could find that defendant “simply did not care whether or not a pedestrian died,” thus demonstrating not just extreme recklessness but also “utter indifference to the value of human life.”