Defendant has filed a motion, pursuant to Criminal Procedure Law (CPL)  440.10, seeking to vacate the judgment of conviction entered against him on December 3, 2001. The People oppose the motion. The Court has received and considered the Motion filed by defendant together with attached exhibits, affirmation and an accompanying memorandum of law; the People's Affidavit in Opposition together with an accompanying memorandum of law; and defendant's Reply Affirmation and accompanying memorandum of law.

Defendant was convicted, following a jury trial, of Murder in the Second Degree in violation of Penal Law (PL) § 125.25(2) (depraved indifference murder), and Assault in the Third in violation of PL § 120.00(2). Defendant was acquitted of Murder in the Second Degree in violation of PL § 125.25(1) (intentional murder).

Specifically, defendant contends that judgment of conviction must be vacated because the trial evidence could only have supported a conviction for intentional murder and not depraved indifference murder. Defendant submits that based upon a series of Court of Appeals decisions rendered after defendant's verdict, including People v Hafeez, 100 NY2d 253 (2003); People v Payne, 3 NY3d 266 (2004) and People v Suarez, 6 NY3d 202 (2005), the law is now clear that a person may not be convicted under a depraved indifference theory of murder if the facts support [*2]only an intentional murder theory. Defendant argues that this Court should apply the law as held in these cases to the instant case and dismiss defendant's conviction for depraved indifference murder, since the facts as adduced at trial could only have supported an intentional murder, a count for which he was acquitted.

Defendant's conviction was affirmed by the Appellate Division, Second Department in People v Gutierrez, 15 AD3d 502, 790 NYS2d 493 (2nd Dept. 2005) which held, in part:

"The defendant's contention that he could only have been convicted of intentional murder (see Penal Law § 125.25[1]) and that the evidence was legally insufficient to support a conviction of depraved indifference murder (see Penal Law § 125.25[2]; People v Payne, 3 NY3d 266, 819 NE2d 634, 786 NYS2d 116) is unpreserved for appellate review (see CPL 470.05[2]; People v Gray, 86 NY2d 10, 19, 652 NE2d 919, 629 NYS2d 173), and we decline to reach it in the exercise of our interest of justice jurisdiction." People v Gutierrez, id at 503.

Defendant's application for leave to appeal to the Court of Appeals was denied, People v Gutierrez, 5 NY3d 763 (2005.)

Defendant further argues that no objection should have been necessary at trial to preserve his instant claim since the law regarding depraved indifference as currently interpreted was not the law at the time of trial. Rather, defendant urges the law as embodied in Payne and Suarez, et al, supra should be applied retroactively.

While defendant makes a number of legal challenges to his conviction, at the core of each of his contentions in Part I of his motion is that the holdings of Payne and Suarez, et al, supra , that a person may not be convicted under a depraved indifference theory of murder if the facts support only an intentional murder theory, should be applied retroactively.

The Court of Appeals has now ruled, in a decision handed down after the submission of all papers by both sides here, that the current standard for depraved indifference murder is not to be applied retroactively. In Policano v Herbert, 2006 NY Slip Op 08284 (November 16, 2006) the Court, in responding to certified questions posed by the United States Court of Appeals for the Second Circuit, reviewed the history of the Court's rulings with respect to the elements of depraved indifference murder and held that their new interpretation of those elements are not to be applied retroactively:

"Register states the correct interpretation of the law of New York with respect to the elements of depraved indifference murder on the date defendant's conviction became final in 2001. Our interpretation of one of those elements — "under circumstances evincing a depraved indifference to human life" — gradually and perceptibly changed from an objectively determined degree-of-risk standard (the Register formulation) to a mens rea, beginning with our decision in Hafeez in 2003, continuing in our decisions in Gonzalez, Payne and Suarez in 2004 and 2005, and ending with our decision in Feingold in 2006. We agree with the dissent insofar as it points out that we adhered to a mens rea of recklessness in Hafeez, Gonzalez, Payne and Suarez. We disagree, however, with the dissent's position that this quartet of cases does not represent a perceptible, evolving departure from the underpinnings of depraved indifference murder as expressed in Register and Sanchez. As the many concurring decisions and dissents in these cases and the dissent in this case illustrate, individual judges hold differing views as to where along this trajectory a majority of the court may have effectively [*3]passed the point of no return — the limit beyond which, hard as we may have tried, it was simply not possible to reconcile our developing case law with Register and Sanchez. There is no doubt, however, that a majority of the court explicitly overruled Register and Sanchez in Feingold, holding that "'depraved indifference to human life' is a culpable mental state" (id. at 296). This raises the question whether our post-Sanchez case law applies retroactively to defendant's case, an issue that Judge Raggi in her dissent intimates that we may wish to address. We conclude that it does not.

Under People v Pepper (53 NY2d 213 [1981]), we must weigh three factors to determine whether a new precedent operates retroactively: the purpose to be served by the new standard; the extent of the reliance by law enforcement authorities on the old standard; and the effect on the administration of justice of a retroactive application of the new standard. The second and third factors are, however, only given substantial weight "when the answer to the retroactivity question is not to be found in the purpose of the new rule itself" (id. at 220, citing Desist v United States, 394 US 244, 249 [1969]). "Thus, where otherwise there could be a complete miscarriage of justice, current constitutional standards that go to the heart of a reliable determination of guilt or innocence have been substituted for those in effect at the time of trial" (Pepper, 53 NY2d at 221).

This is not such a case. The purpose of our new interpretation of "under circumstances evincing a depraved indifference to human life" is to dispel the confusion between intentional and depraved indifference murder, and thus cut off the continuing improper expansion of depraved indifference murder. Moreover, in the words of the concurring judges in Suarez, the goal is to "make future homicide prosecutions more sustainable, increasing the likelihood that defendants who are proven beyond a reasonable doubt to have committed murder will be properly held to account for that crime" (Suarez, 6 NY3d at 217). Further, "[d]efendants who commit[] vicious crimes but who may have been charged and convicted under the wrong section of the statute are not attractive candidates for collateral relief after their convictions have become final" (id. at 217-218). In short, non-retroactivity poses no danger of a miscarriage of justice.

Finally, the other two Pepper factors strongly favor non-retroactivity. For two decades prosecutors relied on Register's objectively determined degree-of-risk formulation when making their charging decisions (see Sanchez, 98 NY2d at 387 [Appendix]). In addition, retroactive application would potentially flood the criminal justice system with CPL 440.10 motions to vacate convictions of culpable intentional murderers who were properly charged and convicted of depraved indifference murder under the law as it existed at the time of their convictions. Policano v Herbert, id at 12-13.

The instant case is precisely one of the cases anticipated by the Court of Appeals as part of a potential flood of "motions to vacate convictions of culpable intentional murderers who [*4]were properly charged and convicted of depraved indifference murder under the law as it existed at the time of their convictions." Accordingly, defendant's application to vacate judgment on the ground that the current state of the law relative to depraved indifference murder should be applied retroactively to defendant's conviction is denied.

Defendant's related claims in Part I of his motion, including: 1) that no objection was necessary at trial to preserve the instant claim; 2) the Appellate Division should have applied the law retroactively; and 3) that the failure to object to the insufficiency of the evidence constituted ineffective assistance of counsel, must also be denied as each is dependent on a holding that the law in question should be applied retroactively.

Defendant next claims that Murder in the Second Degree under PL § 125.25(2) (depraved indifference murder) is unconstitutionally vague. Initially, the Court agrees with the People that this claim must be denied, pursuant to CPL § 440.10(2)(a), as having previously been raised and denied on the merits on direct appeal. (Defendant raised the claim of unconstitutional vagueness in his Appellate Brief at page 32, a copy of which is attached to defendant's instant motion as Exhibit 7.)

In any event, the Court holds that PL § 125.25(2) is not unconstitutionally vague. The Court of Appeals has rejected a vagueness claim for depraved indifference murder in People v Cole, 85 NY2d 990 (1995.) Although the Court of Appeals has, through its holdings in Payne and Suarez, et al, supra , changed the concept of depraved indifference from a degree of risk standard to a culpable mental state, as held in People v Feingold, 7 NY3d 288 (2006), none of those decisions held that PL § 125.25(2) was unconstitutionally vague. Defendant's application to vacate judgment on the ground that PL § 125.25(2) is unconstitutionally vague, is denied.

Further, in that the Court holds that PL § 125.25(2) is not unconstitutionally vague, defendant's claim of ineffective assistance of counsel for failure to raise such a claim is also denied.

In light of the fact that, in the Court's view, the issues raised in the instant motion have been resolved by the Court of Appeals decision in Policano v Herbert, 2006 NY Slip Op 08284 (November 16, 2006), decided after all papers were submitted here, the Court declines to hear oral argument on the matter as requested by defendant.

Accordingly, for the reasons stated herein, defendant's motion to vacate the judgment of conviction entered against him on December 3, 2001, is denied. This memorandum constitutes the decision and Order of the Court.

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J.C.C.