939 N.E.2d 1206 (N.Y. 2010)
On May 11, 2004, a female victim was discovered dead on the roof of an apartment building in the Bronx.1 She was partially clothed and barefooted, with a black plastic bag knotted tightly around her neck covering her head.2 An autopsy performed on the victim's body revealed a one-half-inch laceration above her right eyebrow, abrasions on her cheek and neck, and purple discoloration of her face, along with hemorrhaging at the site of the abrasions.3
The defendant was a resident at the building where the victim was found.4 Videos from May 5th and May 6th showed defendant approaching the victim and entering his apartment with her at night, stepping back into the hallway several hours later, and carrying her body to the roof in the morning.5 Days later, a search of his apartment revealed beads matching the victim's broken necklace scattered throughout defendant's apartment and bloodstains on the bedroom wall and door.6
Defendant was later taken into custody where he made a series of statements.7 According to defendant, he and the victim smoked crack cocaine on the night of May 5th.8 Sometime later, she attacked him, and he hit her to protect himself.9 She then became quiet and he went to sleep.10 Defendant gave conflicting statements as to whether the victim was dead or alive when he awoke in the morning. He admitted covering her head with a plastic bag to stop the blood from spreading and placing her on the roof of his building.11
A grand jury indicted defendant for second-degree depraved indifference murder and first-degree manslaughter.12 At the close of trial, defendant moved to dismiss the depraved indifference murder charge based upon the legal insufficiency of the evidence, citing People v. Suarez.13 Defendant argued that his actions did not fall within the ambit of depraved indifference murder as detailed in Suarez and prior cases where depravity was found, citing People v. Best and People v. Poplis.14 He further argued that the evidence adduced by the People was illustrative of intentional acts and reasoned that such acts are not the theory of depraved indifference murder.15 Supreme Court denied the motion, stating that it was a question of fact ultimately for the finder of fact.16
The jury convicted defendant of depraved indifference murder.17 The Appellate Division, with one dissenting Justice, affirmed.18 The court concluded that defendant's appellate challenge to the legal sufficiency of the evidence had not been preserved.19 The dissent, however, concluded that defendant's argument was preserved and that his conviction was not supported by legally sufficient evidence.20 A Justice of the Appellate Division granted defendant leave to appeal.21
Whether defendant preserved a legal sufficiency challenge to his depraved indifference murder conviction?22
Because defendant moved to dismiss the depraved indifference murder charge for legal insufficiency pursuant to Suarez, he properly preserved the issue for appellate review.23 As we explain below, it is incorrect to suggest that an argument under Suarez is fundamentally different from one based on Feingold.
Yes. At the close of trial, defendant moved to dismiss the depraved indifference murder charge based upon the legal insufficiency of the evidence, citing People v. Suarez. Defendant argued that his actions did not fall within the ambit of depraved indifference murder as detailed in Suarez and prior cases where depravity was found, citing People v. Best and People v. Poplis. He further argued that the evidence adduced by the People was illustrative of intentional acts and reasoned that such acts are not the theory of depraved indifference murder.
Supreme Court denied the motion, stating that it was a question of fact ultimately for the finder of fact. Because the motion specifically invoked Suarez and challenged the fit between the facts and the limited circumstances for depraved indifference murder, the preservation requirement was satisfied even though the appeal later referenced Feingold.24
Defendant sufficiently preserved the legal sufficiency challenge for appellate review.25
Whether the evidence was legally sufficient to support defendant's conviction for depraved indifference murder?26
To support a depraved indifference conviction under Penal Law § 125.25(2), the People must demonstrate that the defendant, under circumstances evincing a depraved indifference to human life, recklessly engaged in conduct which created a grave risk of death to another person and thereby caused the death of another person.27 This requires proof of an utter disregard for the value of human life.28 The conduct must fit one of the limited fact patterns, such as abandoning a helpless and vulnerable victim in circumstances where death is highly likely or engaging in torture or a brutal, prolonged and ultimately fatal course of conduct against a particularly vulnerable victim where intent to kill is absent.29
No. The evidence established that defendant and the victim smoked crack cocaine on the night of May 5th, that she attacked him and he hit her to protect himself, that she then became quiet and he went to sleep, and that after he awoke he knotted a plastic bag over the victim's head to stop the blood from spreading and placed her body on the roof of his building.30 These facts do not establish torture or a brutal, prolonged course of conduct against a vulnerable victim, nor do they show that defendant abandoned a helpless victim in circumstances where death was highly likely while intending neither to seriously injure nor to kill.31 Instead, the conduct reflects a discrete assault followed by efforts to conceal the body, which aligns with intentional or reckless conduct punishable under other homicide statutes but falls outside the narrow circumstances evincing the required mental state of utter depravity and indifference to human life.32
The evidence was not legally sufficient to support defendant's conviction for depraved indifference murder.33