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Both crimes result in death

The deceased and his male friend occasionally sold marijuana out of a grocery store they owned together in Queens. While the deceased was away on a trip, the defendant came into the store and told the male friend that he wanted to buy a quantity of marijuana. They agreed on a price of $4,000, and the defendant later sent a man to pick up the drugs. The male friend soon discovered that the bills the man had given him in exchange for the marijuana were counterfeit. He called the defendant and demanded that he either return the drugs or bring the money. The criminal defendant did neither and, when the deceased returned from his trip, the male friend told him what had happened.

On the evening of January 19, 1993, the deceased was in the store with another friend. An associate of the defendant telephoned but the deceased hung up on him after saying only, that he doesn’t want to hear what he is to say. Another call came and the caller told him to bring the stuff back. Another call came in, this one from the defendant himself. Again, the deceased said that he doesn’t want to hear it, just bring it back.

A few minutes later, another man arrived at the store, followed soon after by the defendant and two other men. After one of the men asked the deceased why he had hung up on him, the defendant suddenly produced a gun, pointed it at the deceased, and said that he heard him telling the people what he is going to do him. The deceased replied that it is not true, but the defendant fired one shot at him from a distance of approximately four to five feet, striking him in the neck. After being shot, the deceased made an attempt to get out of the store through the back door behind the counter. He was unsuccessful.

One of the men who had arrived with the defendant seemed shocked at the shooting. Another said that it wasn’t necessary. The deceased man’s friend cursed at the defendant who then turned and pointed the gun at him. The friend reacted by asking the defendant if he is going to kill him too. As the deceased continued to hold his neck and complain about the pain, the defendant turned and, without firing another shot, walked out of the store with his companions. The deceased man’s friend and some other men brought the deceased to the hospital where he later died of a single .22 caliber gunshot wound to the neck. Some seven years later, the defendant was apprehended in Maryland and charged with the homicide.

The defendant was indicted and tried on charges of intentional murder, depraved indifference murder, criminal possession of a weapon in the second and third degrees, and menacing in the second degree. At the defendant’s request, the trial court also submitted the lesser-included offenses of manslaughter in the first degree and manslaughter in the second degree. The jury acquitted the defendant of intentional murder, but convicted him of depraved indifference murder, criminal possession of a weapon in both the second and third degrees, and menacing in the second degree. In accordance with the trial court’s instructions, having convicted the defendant on a charge of murder, the jury returned no verdict on either of the lesser-included manslaughter charges.

The defendant maintains that, although the evidence may have demonstrated intent to kill, it was insufficient as a matter of law to prove that he acted recklessly, a necessary element of the crime of depraved indifference murder. Insofar as relevant here, whether a criminal act is intentional or reckless depends upon the relationship between the perpetrator’s objective in committing the act and the result the act produces.

For an intentional crime, the perpetrator must engage in conduct with the conscious objective and purpose of causing a particular unlawful result. For a reckless crime, the perpetrator does not act with the conscious objective of causing the unlawful result, but must engage in conduct that creates a substantial and unjustifiable risk that the unlawful result will occur. The reckless perpetrator is aware of the risk but consciously disregards it and engages in the conduct anyhow, thereby deviating grossly from the standard of conduct that a reasonable person would observe in the situation.

With respect to the homicide at issue in this case, the jury was instructed on two intentional crimes and two reckless ones. The more serious intentional crime was murder in the second degree, often called intentional murder. That crime is committed when, with intent to cause the death of another person, the defendant causes the death of such person or of a third person. The lesser intentional offense was manslaughter in the first degree. That crime is committed when, with intent to cause serious physical injury to another person, the defendant causes the death of such person or of a third person. Both crimes result in death. The difference lies in the perpetrator’s intent, that is, the perpetrator’s objective in committing the act. For intentional murder, the perpetrator acts with the intent to cause death and does so. For first-degree manslaughter, the perpetrator intends to cause only serious physical injury but his or her conduct results in death.

The jury was also instructed on two reckless offenses. One was manslaughter in the second degree, often called reckless homicide. That crime is committed when the defendant recklessly causes the death of another person. Thus, a defendant would be guilty of reckless homicide if he or she engaged in conduct that created a substantial and unjustifiable risk that another person’s death would result, and if the defendant was aware of the risk but consciously disregarded it and engaged in the conduct anyhow, thereby deviating grossly from the standard of conduct that a reasonable person would observe in the situation, and if the defendant’s conduct in fact caused another person’s death.

The second reckless offense on which the jury was instructed was murder in the second degree, charged as depraved indifference murder. That crime is more serious than ordinary reckless homicide, and is punishable at the same level as intentional murder. Depraved indifference murder is committed when, under circumstances evincing a depraved indifference to human life, the defendant recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person. Comparing statutory definitions, these two reckless homicide offenses differ in that, for depraved indifference murder, the risk of death created by the defendant’s conduct must not only be substantial and unjustifiable, it must also be grave, and the defendant’s conduct, engaged in with conscious disregard of that risk, must not merely constitute a gross deviation from the standard of conduct that a reasonable person would observe in the criminal situation, but it must be such as to evince a depraved indifference to human life.

The culpable mental state required for depraved indifference murder is recklessness. Depraved indifference to human life does not define a mensrea; it refers to the objective circumstances surrounding a defendant’s conduct that aggravate the seriousness of the crime by elevating the substantial and unjustifiable risk of death necessary for reckless criminal homicide to an imminently dangerous, very substantial risk, manifestly destined to result in death.

Ordinarily, a defendant cannot be guilty of both the intentional and reckless homicide of the same individual because a defendant cannot intend to cause a person’s death and at the same time consciously disregard a risk that he or she will succeed in doing so.

One who acts intentionally in shooting a person to death—that is, with the conscious objective of bringing about that result cannot at the same time act recklessly—that is, with conscious disregard of a substantial and unjustifiable risk that such a result will occur. The act is either intended or not intended; it cannot simultaneously be both. Thus, where the shooting (the act) and the death (the result) are the same, a defendant cannot be convicted twice for the murder, once for acting intentionally and once for acting recklessly.

Plainly, then, a single criminal homicidal act committed against one individual can, under certain circumstances, constitute both an intentional crime and a reckless one, provided only that the intent harbored by the perpetrator is other than an intent to kill. Where, however, the defendant acts with the intent to kill the victim, he or she may not be convicted of any reckless crime, either reckless homicide or depraved indifference murder, in connection with the death.

Consistent with these principles, a verdict convicting a defendant of depraved indifference murder cannot stand where the evidence at a homicide trial admits of no means other than intent to kill.

In the case at bar, the jury’s acquittal on the intentional murder count signaled its conclusion that the evidence left, at the least, a reasonable doubt as to whether the defendant had acted with the intent to kill. Inasmuch as the defendant fired his small caliber weapon only once and left the store while the deceased was still conscious, speaking, and surrounded by persons who could, and did, seek medical assistance for him, a rational jury certainly could have concluded that the evidence did not establish that the defendant intended to kill the deceased. Moreover, the defendant will not be heard to argue to the contrary.

At the close of the evidence, the defendant asked the trial court to submit for jury consideration as lesser-included offenses the charges of manslaughter in the first degree and manslaughter in the second degree. In order to have a trial court submit a lesser-included offense of a charged crime, a defendant must show first, that it is impossible to commit the charged crime without concomitantly, by the same conduct, committing the lesser offense, and second, that there is a reasonable view of the evidence under which the defendant committed the lesser offense but not the greater.

On this record, as the defendant successfully argued in the trial court, there was a reasonable view of the evidence under which he committed either manslaughter in the first degree or manslaughter in the second degree, but not murder. Indeed, had the trial court refused to submit the two charges as lesser-included offenses, reversal would likely be required.

For reasons previously stated, the evidence in this case clearly supports a mensrea other than intent to kill, and the defendant himself, by asking for the submission of manslaughter in the second degree as a lesser-included offense, in effect, conceded as much. Because a rational jury could have concluded, as the jury here did, that the defendant did not intend to kill the victim but rather, with wanton disregard for his life, recklessly engaged in conduct that was imminently dangerous to him, created a very high risk that he would die, and ultimately caused his death, it cannot be said that the defendant’s conviction was not supported by legally sufficient evidence.

The defendant’s remaining contentions, raised in his supplemental pro se brief, are unpreserved for appellate review and, in any event, are without merit. Accordingly, the judgment should be affirmed.

Heated confrontations often lead to serious trouble. Sometimes, one of the party involve possess weapons that could hurt the other party. If you are in a middle of a legal action involving weapons, be sure to hire the Queens County Possession of a Weapon Lawyer or the Queens County Criminal Attorney from Stephen Bilkis and Associates.