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Court Discusses Depraved Indifference to Murder Charge


On May 11, 2004, a firefighter conducting a routine building inspection discovered the body of 42-year-old woman on the roof of a building in the Bronx. A New York Criminal Lawyer said the black plastic bag covered the woman’s head and was knotted tightly around her neck. When the body was found, she was barefooted, her sweatshirt pulled up over one of her breasts and her jeans unzipped and pulled partially down. One of two beaded necklaces around her neck was broken and beads were missing. After the plastic bag was peeled from her head, a wound above her right eyebrow and a bruise to her right cheek were noted.

The building at 187th Street is privately owned and used by the City of New York as a temporary housing facility. The defendant resided in the building until May 6, 2004. The hallway of each floor of the building is monitored by two video cameras. Videos in evidence depict the defendant approaching the dead woman and entering his apartment with her on May 5 at 9:08 p.m., stepping back into the hallway and looking at the video camera on May 6 at 2:30 a.m., and carrying the woman’s body to the roof on the same day at 10:40 a.m. Shortly thereafter, the defendant is seen leaving his apartment carrying a piece of white cloth and then reentering the apartment. Five minutes later, the defendant is seen leaving the building carrying his belongings in a black plastic bag. Beads matching those on the woman’s broken necklace were found scattered throughout the defendant’s apartment by a Detective on May 13. Bloodstains were also found on the bedroom wall and door. On May 18, the Detective took the defendant into custody and escorted him to the precinct. While in custody, the defendant made a series of statements of which five were handwritten and one videotaped.

According to the defendant’s statements, the woman accompanied him to his apartment after agreeing to have sex with him in exchange for crack cocaine and money. The defendant stated that during the evening the woman attacked him and he hit her in the head to protect himself. Thereafter the woman became quiet and the defendant fell asleep. The defendant stated that upon waking up the following morning, he heard the woman’s heartbeat, but he later denied hearing it. He added that the woman was bleeding and he placed the plastic bag on her head to stop the blood from spreading and because he couldn’t stand to look at her. Thereafter, he dumped the woman on the roof, gathered his possessions and vacated the building. A grand jury indicted him for the criminal acts of depraved indifference murder and manslaughter in the first degree.

An examiner from the Office of the Chief Medical Examiner of the City of New York performed an autopsy on the woman’s body. The autopsy revealed a one-half-inch laceration above the dead woman’s right eyebrow, purple discoloration of her face and abrasions on her cheek. The examiner also found two abrasions on the right side of her neck. Upon opening the body’s neck, the examiner found hemorrhaging at the site of the abrasions. The hemorrhaging was suggestive of a blunt force injury or compression. The autopsy report signed by the examiner on May 27, 2004 listed the cause of death as blunt impact of the head and compression of the neck and chest.

A Staten Island Criminal Lawyer said the deputy chief medical examiner opined that the cause of the woman’s death was homicidal asphyxia. The term encompasses smothering, compression of the neck, and compression of the chest. The deputy chief examiner explained that the purple discoloration of the woman’s face was consistent with neck compression. The anatomical findings noted by the deputy chief examiner also included bruising of the large muscle on the right side of the neck, indicative of force applied to the area. He noted similar bruising on the right side of the chest and he opined that bleeding is a sign of life in a human body inasmuch as it is indicative of a heartbeat. He further opined that placing a plastic bag over a person’s head could cause death by asphyxia.

At the close of trial, the defendant moved for an order of dismissal based upon the legal insufficiency of the evidence. A New York Sex Crimes Lawyer said the defendant challenges the legal sufficiency of the evidence and he stated that the evidence rationally supported three possibly antagonistic, but equally plausible hypotheses. Either the victim was in fact dead in the morning when the defendant found her turning purple on the floor, in which case the defendant killed her during their crack addled struggle the night before—a manslaughter theory which was argued against by the State and which leaves open the question of self defense or, the defendant mistakenly and recklessly or negligently believed that the unconscious victim was already dead. He tied a bag over her face to avoid looking at her and inadvertently suffocated her—a criminal act of reckless manslaughter or negligent homicide. Or, finally, as the prosecutor argued in summation, the defendant found the victim on the floor in the morning, knew that she was unconscious but still breathing and tied a bag over her face with a conscious objective to kill her—an intentional murder. No reasonable view of the evidence, however, is consistent with depraved indifference murder.

To preserve a legal sufficiency challenge for appellate review, a defendant must move for a trial order of dismissal, and the argument must be specifically directed at the error being urged. As noted above, defendant’s argument at trial was confined to calling into question the time frame with respect to the conduct constituting depraved indifference murder. The defendant’s appellate challenge to the legal sufficiency of the evidence has not been preserved inasmuch as his trial motion to dismiss was based on a different argument. The court further declines to reach the issue in the interest of justice.

The defendant also posits that the verdict is against the weight of evidence because the evidence shows that the woman was already dead when defendant covered her head with the plastic bag tied around her neck. The weight of the evidence review requires us to first determine whether an acquittal from the criminal act would not have been unreasonable. If so, the court must next weigh conflicting testimony, review any rational inferences that may be drawn from the evidence and evaluate the strength of such conclusions. Then, based on the weight of the credible evidence, it must next decide whether the jury was justified in finding the defendant guilty beyond a reasonable doubt. In conducting the required analysis, based upon the evidence adduced at trial, an acquittal of the charge of depraved indifference murder would have been unreasonable. In any event, that a weighing of the evidence supports the conclusion that the woman was fatally asphyxiated by the defendant’s placing of the plastic bag over her head and knotting the same around her neck. The conclusion would be supported by the defendant’s statement that he heard the woman’s heartbeat before placing the bag over her head. The conclusion would have further support in the deputy chief examiner’s testimony that homicidal asphyxia, the cause of death that encompasses smothering, could have been brought about by use of the plastic bag. The deputy chief examiner’s opinion is that the woman’s bleeding was an indication that she was alive when smothered by the plastic bag.

Brutal deaths are generally either because of money (either that you have it or that you lack it) or because of love (that you have or that you are about to lose). If you are torn in a legal dispute that would require the expertise of the Bronx County Sex Crime Lawyer or the Bronx County Criminal Attorney, simply call Stephen Bilkis and Associates.

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