The above named defendant stands charged with two counts of Murder in the Second Degree, in violation of Sections 125.25(1) and 125.25(2) of the Penal Law. The defendant filed an Omnibus Motion and the People filed an Affirmation in Opposition thereto.

The prima facie evidence presented to the grand jury is as [*2]follows: On July 24, 2006, at approximately 9:38pm, fifteen year old J.T., accompanied by a number of friends, walked to the intersection of First Street and Harrison Avenue in the city of Rensselaer. J.T. carried a belt in his hand, with the buckle hanging down. He met the defendant at the street corner, and the two started to argue. J.T. said, "oh, you want to beat up, you want to hit girls and you want to call people fa—ts? Let's fight." The defendant said, "let's do it." The defendant punched J.T in the shoulder, and J.T. hit the defendant with the belt buckle two to three times in the shoulder and/or face. The defendant pulled a knife from his pocket, and stabbed J.T. in the chest. While the knife was implanted in J.T.'s chest, the defendant turned it in an upward motion, and pulled it out. The victim ran to a nearby police vehicle with his clothes saturated in blood, yelling, "I just got stabbed." He collapsed, and ultimately died from the stab wound.

At the time of the offense, the defendant was thirteen years old. The District Attorney's Office has elected to prosecute the defendant as an adult. PL § 30.00(2).

The defendant moves to dismiss the Murder in the Second Degree charge, claiming that the evidence does not support the limited definition of depraved indifference set forth by the Court of Appeals.

A person commits depraved indifference murder when "[u]nder circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person." PL § 125.25(2). "Depraved indifference is best understood as an utter disregard for the value of human life a willingness to act not because one intends harm, but because one simply does not care whether grievous harm results or not. Reflecting wickedness, evil, or inhumanity, as manifested by brutal, heinous, and despicable acts, depraved indifference is embodied in conduct that is so wanton, so deficient in a moral sense of concern, so devoid of regard of the life or lives of others, and so blameworthy as to render the actor as culpable as one whose conscious objective is to kill." People v. Suarez, 6 NY3d 202, 214 (2006). "[I]t involves a killing in which the defendant does not have a conscious objective to cause death but instead is recklessly indifferent, depravedly so, to whether death occurs." People v. Gonzalez 1 NY3d 464, 467-68 (2004). "Quintessential examples are firing into a crowd, driving an [*3]automobile along a crowded sidewalk at high speed, opening the lion's cage at the zoo; placing a time bomb in a public place; poisoning a well from which people are accustomed to draw water; opening a drawbridge as a train is about to pass over it and dropping stones from an overpass onto a busy highway." Suarez, 6 NY3d at 214 (internal citations omitted).

Depraved indifference murder may not be properly charged in the overwhelming majority of homicides that are prosecuted in New York. People v. Payne, 3 NY3d 266, 270 (2004). A one-on-one shooting or knifing (or similar killing) can almost never qualify as depraved indifference murder. Wanton disregard for human life inherent in every intentional homicide does not amount to depraved indifference murder. People v. Payne, supra, at 271. Indifference to the victim's life is not synonymous with the intent to take it. The use of a weapon can never result in depraved indifference murder when there is a manifest intent to kill. Id.

Depraved indifference murder should not be used as a fallback for intentional murder. It is incumbent on the prosecutor to make a choice at the outset whether to pursue intentional or depraved murder. If the prosecutor fails to make a choice and charges twin-counts of murder, intentional and depraved, then the court should presume that the defendant's conduct falls within only one category of murder and, unless compelling evidence is presented to the contrary, dismiss the count that is least appropriate to the facts. People v. S.E-W., 13 Misc 3d 1050, 1053 (Sup. Ct. Nassau Cty. 2006).

The Court of Appeals has recognized that in rare circumstances, depraved indifference murder can be found in certain unintentional killings directed at a single individual. People v. Suarez, supra 210. Two fact patterns have recurred over the past four decades of experience under the current Penal Law. First, when the defendant intends to neither seriously injure, nor to kill, but nevertheless abandons a helpless and vulnerable victim in circumstances where the victim is highly likely to die, the defendant's utter callousness to the victim's moral plight - arising from a situation created by the defendant - properly establishes depraved indifference murder. Thus, in People v. Kibbe, 35 NY2d 407 (1974), the defendants were properly convicted of depraved indifference murder after they robbed an intoxicated victim and forced him out of a car on the side of a dark, remote, snowy road, partially dressed and without shoes in [*4]subfreezing temperatures, where he was struck by a passing truck and killed.

The second fact pattern is when the defendant - acting with a conscious objective not to kill but to harm - engages in torture or a brutal, prolonged and ultimately fatal course of conduct against a particularly vulnerable victim. Thus, in People v. Poplis, 30 NY2d 85 (1972), the defendant committed depraved indifference murder when, albeit without any intent to kill, he caused the death of a 3½ year-old infant as a result of continually beating the child over a period of five days.

If not fitting into one of the above fact patterns, it is only the rare and extraordinary case that will support a depraved indifference murder charge where the defendant's conduct only endangers one person. In People v. Roe, 74 NY2d 20 (1989), a 15 year-old juvenile offender was found guilty of depraved indifference murder. The defendant was a high school student with a detailed knowledge of weapons, who deliberately loaded a mix of "live" and "dummy" shells at random into the magazine of a 12-gauge shotgun, pumped a shell into the firing chamber not knowing whether it was a "dummy" or a "live" round, raised the shotgun and pointed it directly at the victim, announcing, "Let's play Polish roulette. Who is first?", and pulled the trigger discharging a "live" round which struck the victim at close range causing injuries that resulted in his death. It was the fact that the defendant did not care that death could result from his actions, not an actual intent to harm, that supported the depraved murder charge.

The People claim that in our case, the defendant's "age" and

his questionable "ability to appreciate the consequences of his actions" presents a "rare exception" where a one-on-one stabbing amounts to depraved indifference murder.

This argument fails on two levels. The first is that "the sheer enormity of the act - putting one's life at such grave peril...- is not diminished because [the defendant] is a youth..." People v. Roe, 74 NY2d 20, 28 (1989). The People cannot prosecute the defendant as an adult and at the same time argue a special standard should be applied because of his age.

Second, any proof regarding the defendant's failure to [*5]appreciate the consequences of his actions would relate to criminally negligent conduct falling outside the required culpable mental state for depraved indifference murder. The Court of Appeals has held that depraved indifference murder requires a specific culpable mental state and cannot be proven by an objective assessment of the risk involved in a person's conduct. People v. Feingold, 7 NY3d 288 (2006). Depraved indifference murder is reckless conduct accompanied by a state of mind showing depravity marked by extreme wickedness, or abject moral deficiency, or a mischievous disregard for the near certain consequences of one's actions. People v. Feingold, supra, citing People v. Suarez, supra. Reckless conduct is a conscious disregard of a risk. See Penal Law § 15.05(3). Failing to perceive a risk, as the People assert, is criminal negligence. See Penal Law § 15.05(4). In effect, the People's argument negates the necessary mens rea to support the charge of depraved indifference murder.

The People cite People v. S. E-W., 13 Misc 3d 1050 (Nassau County, 2006) for their claim that both counts should proceed to trial. In that case, the grand jury minutes established the following: defendant, who was drinking at an outdoor café, got into an altercation with another patron. Two people escorted the defendant out while he threatened to "kill all you guys". After getting in his car, he accelerated towards a crowd that had formed in the parking lot and hit two bystanders, causing them injury. Defendant then hit the two people who had lead him out of the café, causing them serious physical injury. The defendant's charges included various degrees of assault, under intentional and depraved indifference theories, and reckless endangerment. In upholding the indictment, the Court held that "where the testimony before the grand jury can conceivably sustain either theory, the Court must permit the indictment to go forward under both intentional and depraved indifference theories." Id. at 1054 (emphasis added). Under the specific facts of that case, the Court held that "the defendant's culpable mental state is not clearly discernable from the prima facie proof before the grand jury." Id. at 1054.

The facts in S. E-W, supra present an exceptional situation where the defendant's mental state is open to both interpretations. Our case is readily distinguishable because there is no evidence establishing depravity or indifference. The defendant directed his actions towards one victim when he plunged a knife into the boy's chest, and twisted it in an upward motion before pulling it out. (Grand Jury Minutes 20: 13-21). [*6]Information from the final autopsy report, which was read into the record at the Grand Jury proceeding, revealed that the "[a]utopsy confirmed the clinical diagnosis, a stab wound of the pulmonary artery inside the pericardium. Massive bleeding from the wound led first to cardiac tamponade and then death from exsanguination." Grand Jury Minutes, 21: 21-25. In other words, the victim bled to death because the defendant implanted a knife in his heart.

Based on all of the above, the court finds that there is absolutely no basis in fact or law for Count Two of the indictment, depraved indifference murder, and dismisses it.

This shall constitute the Decision and Order of the Court.

DATED:Troy, New York

March 12, 2007

______________________________________

PATRICK J. McGRATH

County Judge