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Court Discusses Act of Depraved Indifference in Murder Trial


On July 1, 2005, after spending several hours in a bar in Manhattan, at which he consumed at least six beers, the defendant attended a friend’s party in Merrick in Nassau County. He arrived at the party, which consisted of a small gathering of his friends. The house where the party was being held was approximately a five-minute drive from the Meadowbrook State Parkway. At the party, the defendant was seen consuming several alcoholic drinks. Two of the defendant’s friends who were at the party described the defendant as intoxicated or “buzzed.” However, neither one observed the defendant stumbling or staggering while he was dancing, nor was he observed to be slurring his words. A Bronx DWI Lawyer said that, the defendant remained at the party for 1 1/2 to 2 hours before leaving in his pickup truck. Despite having previously received offers to sleep over or utilize a designated driver rather than drive after drinking, the defendant chose to get into his pickup truck and drive while intoxicated.

A Bronx DWI Lawyer said that, the defendant was driving the wrong way in the southbound lanes of the Meadowbrook State Parkway, a limousine was proceeding south in the left southbound lane of the Meadowbrook State Parkway. The limousine encountered the pickup truck headed directly towards it just north of the Babylon Turnpike overpass. The limousine was carrying a family, consisting of their two daughters, seven-year-old and five-year-old, and the parents, back home from a wedding. The pickup truck collided head-on with the limousine, apparently having tracked the limousine’s movement, crushing and killing the other passenger, decapitating the seven-year-old passenger in the limousine, and causing severe, and, in some instances, life-threatening, injuries to the remaining passengers in the limousine.

A Bronx Drunk Driving Lawyer said that, the defendant was placed under arrest at the scene, and was later informed of his arrest by the Investigator of the New York State Police. Upon being so advised, the defendant told the police that from the time he had moved to New York from Arkansas the previous October, “everything was going wrong” and “nothing he did was ever enough.” The defendant recounted to the police that he had argued with his ex-girlfriend over the phone, had financial problems, had recently lost his grandmother with whom he had been close, and was very upset, depressed, and in a “self-destructive mode.”

A Bronx DWI Lawyer said that, the jury convicted the defendant of two counts of murder in the second degree, three counts of assault in the first degree, and two counts of operating a vehicle while under the influence of alcohol. The defendant was sentenced to an indeterminate term of imprisonment of 18 years to life on his convictions of each count of murder in the second degree, a determinate term of 18 years of imprisonment plus 5 years of post release supervision on his convictions of each count of assault in the first degree, and a definite term of 180 days of incarceration on his convictions of each count of operating a vehicle while under the influence of alcohol, all terms to run concurrently. Defendant appealed from the judgment of the Supreme Court.

The issue in this case is whether defendant’s conviction was sufficiently proven.

The Court said that, contrary to the People’s contention, the defendant’s argument that the evidence was legally insufficient to support the convictions of murder in the second degree under Penal Law § 125.25(2) and assault in the first degree under Penal Law § 120.10(3), crimes which require proof of depraved indifference, is preserved for appellate review. Viewing the evidence in the light most favorable to the prosecution the Court finds that it was legally sufficient to support the defendant’s convictions of depraved indifference murder and assault in the first degree.

Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence, the Court nevertheless accord great deference to the fact finder’s opportunity to view the witnesses, hear the testimony and observe demeanor. The question of whether the defendant possessed the mens rea of depraved indifference to human life is highly fact-sensitive, requiring a case-by-case analysis. Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence. A person acts with depraved indifference if he or she does not care if another is injured or killed. Depraved indifference murder or assault differs from intentional murder in that it results not from a specific, conscious intent to cause death or injury, but from an indifference to or disregard of the risks attending defendant’s conduct.

The evidence presented to the jury established that, 15 to 30 minutes before the collision, the defendant, although intoxicated, remained steady on his feet and held conversations without slurring his speech. Furthermore, the other drivers who observed the pickup truck traveling on the Meadowbrook State Parkway testified that the pickup truck maintained a steady speed, successfully negotiated the curves of the parkway, and stayed within one lane of travel, except in those instances where the defendant apparently tracked the headlights of the oncoming vehicles as they attempted to avoid the pickup truck. The testimony also established that, for the approximately 2.5 miles that the defendant was observed driving the wrong way on the Meadowbrook State Parkway prior to the impact with the limousine, the defendant passed “wrong way” signs, the back side of highway signs, at least five sets of headlights shining directly at him, at least one set of headlights suddenly veering to one side, and tail lights on the other side of the guide rail. In addition, he was confronted with a horn blaring three times and the noise of a loud motorcycle on the other side of the median strip keeping pace with him in the same direction. Given all of the foregoing evidence, it was reasonable for the jury to conclude that the defendant was aware that he was driving the wrong way and deliberately chose to continue to proceed in the northbound direction, against traffic, without regard for the grave danger to himself and others traveling on the parkway that night.

Furthermore, the defendant did not testify on his own behalf. Thus, the only manner in which the jury heard the defendant’s “own words” concerning his state of mind was through the testimony of the police officers, who recounted the defendant’s statement to them at the hospital, and through the defendant’s letter. In that letter, the defendant admitted that he would lie to protect his friends and family and to make himself appear sympathetic and not as a “hooligan.” Despite the defendant’s admission of his propensity to lie, the dissent relies upon the statements contained in this letter, written after the defendant was made aware that he was facing multiple murder and assault charges, rather than upon the defendant’s earlier self-incriminating statements made to the police at a time when he did not yet realize he was facing such charges. In addition, the jury heard testimony from the prosecution’s expert, a forensic toxicologist, that an average male, weighing 180 pounds and standing 5 feet, 10 inches, with a blood alcohol concentration of .28%, would necessarily have had approximately 14 “drinks” in his system, and if that average male began drinking at 4:30 P.M. and continued until 1:00 A.M. or 1:30 A.M., he would necessarily have had 20 “drinks” in his system, with a drink equaling a unit of alcohol such as 12 ounces of beer or 1 shot of liquor. The jury also heard testimony from the People’s expert that a blood alcohol concentration of .28% would not prevent a person, such as the defendant, from reacting to different stimuli, such as oncoming headlights, the reverse side of highway signs, and blaring car horns, for a period of 2 1/2 minutes. The expert also stated that a person’s response to stimuli would be completely shut down only if the person were rendered unconscious. The jury was also informed that an intoxicated person on an unfamiliar road confused by his or her surroundings would not be expected to maintain a steady speed and drive in a straight line, as the defendant did. Thus, the expert’s testimony, which was wholly uncontroverted by the defendant, when considered with the testimony of those who observed the defendant immediately before the impact, provided a basis for the jury to reasonably determine that the defendant had the requisite mens rea to commit depraved indifference murder and assault at the time that the impact occurred.

Thus, contrary to the approach taken by our dissenting colleague, the evidence presented to the jury established that the defendant engaged in reckless conduct which created a “grave” risk of death, thereby evincing a depraved indifference to human life. Accordingly, we conclude that the People established the defendant’s guilt of two counts of murder in the second degree and three counts of assault in the first degree beyond a reasonable doubt. Further, the Supreme Court properly denied the defendant’s motion pursuant to CPL 330.30 to set aside his conviction on the ground that the jurors improperly considered the defendant’s prior arrest for and conviction of driving while intoxicated. “Improper influence includes even well-intentioned jury conduct which tends to put the jury in possession of evidence not introduced at trial. A defendant must demonstrate that the alleged misconduct impaired his or her right to a fair trial. Accordingly, the Court held that the judgment is affirmed.

If you are involved in a DWI incident, theft or sex crimes, and been charged in Court, seek the help of a Bronx DWI Attorney in order to explain to you the nature of your case. Bronx Criminal Attorney at Stephen Bilkis and Associates can represent your case and exhaust the possible remedies available therein. Call us.

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