[*1]
| People v James |
| 2007 NY Slip Op 50635(U) [15 Misc 3d 1113(A)] |
| Decided on March 30, 2007 |
| Supreme Court, Kings County |
| Leventhal, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected in part through April 4, 2007; it will not be published in the printed Official Reports. |
Supreme Court, Kings County
The People of the State of New York, Plaintiff
against
Andrew James, Defendant.
|
2311/01
Solomon Neubort, Esq.
Assistant District Attorney
For the People
Arnold J. Levine, Esq.
For Defendant
John M. Leventhal, J.
Defendant moves, pursuant to C.P.L. § 440.10, to vacate the judgment of conviction entered against him on February 10, 2003, for Murder in the Second Degree (J. Leventhal). Defendant contends that trial evidence did not establish the elements of Depraved Indifference Murder (P.L. § 125.25[2]). He also alleges ineffective assistance of both trial and appellate counsel, and that the trial court impermissibly refused to charge the jury with Manslaughter in the Second Degree as a lesser included offense. The People oppose defendant's motion. The Court, in deciding this motion, has considered the defendant's motion, the People's answer, and the defendant's reply, and has reviewed the trial transcript.
Procedural History
On or about and between March 8 and March 12, 2001, defendant Andrew James caused the death of his girlfriend, Carol Ann Lindsay, by manual strangulation. Defendant maintained that he was intoxicated. On March 23, 2001, defendant was charged with intentional and depraved indifference counts of Murder in the Second Degree under Kings County Indictment Number 2311/01. At the charge conference, the Court added a count of Manslaughter in the First Degree, but denied defendant's request to charge the jury with Manslaughter in the Second Degree.
At trial, defense counsel argued in closing that the facts of the case could not support a finding of intent to commit murder, and argued only briefly that defendant's conduct fell short of constituting depraved indifference. The Court instructed the jury to consider the depraved indifference count before considering the intent-based counts. Defendant was convicted of [*2]depraved indifference murder, and sentenced to a prison term of 23 years to life on February 25, 2003.
On June 20, 2005 the Appellate Division affirmed the defendant's judgment of conviction. Defendant's appellate counsel raised only issues regarding hearsay in the appellate brief, but following the Court of Appeals' October 19, 2004, decision in People v. Payne, 3 NY3d 266, sought permission to file a supplemental brief. Though the court denied this request, counsel prepared a written argument challenging the sufficiency of the trial evidence to support a finding of recklessness. Defendant adopted and submitted this argument in a pro se supplemental brief, in which he also argued that the Court's refusal to include a count of Manslaughter in the Second Degree for the jury's consideration was error. The Appellate Division considered the defendant's pro se supplemental brief, but upheld the conviction (19 AD3d 616 [2005]).
The Court of Appeals denied the defendant's request for leave to appeal on August 25, 2005 (5 NY3d 807 [2005]). Defendant's conviction therefore became final on November 23, 2005.[FN1] On November 20, 2006, defendant filed a motion for a writ of error coram nobis in the Appellate Division, claiming ineffective assistance of both trial and appellate counsel. The Appellate Division denied this motion on January 9, 2007 (36 AD3d 630).
Defendant now moves to vacate his judgment of conviction. He bases this motion first on the theory that the evidence presented at trial was insufficient as a matter of law to establish the elements of depraved indifference murder beyond a reasonable doubt. Secondly, defendant claims that trial counsel's emphasis on disproving intent rather than on disproving recklessness as well as appellate counsel's failure to brief the issue of insufficient trial evidence both constituted ineffective assistance of trial and appellate counsel, respectively. Finally, defendant claims that the trial court erred in refusing to charge the jury with the crime of Manslaughter in the Second Degree.
Discussion
Defendant argues that his conviction must be vacated because it is a violation of his due process rights under the United States and New York State Constitutions. C.P.L. § 440.10(1)(h) allows a court to vacate its own judgment if that "judgment was obtained in violation of a right of the defendant under the constitution of this state or of the United States." Defendant asserts that his conviction violates his due process rights because the evidence presented at trial was insufficient to establish all the elements of depraved indifference murder, defense counsel's representation was ineffective at both the trial and appellate levels, and the trial court declined to charge the jury with a lesser crime of Manslaughter in the Second Degree.
I. Sufficiency of the Evidence Presented at Trial to Support a Conviction of Depraved Indifference Murder
Under C.P.L. § 440.10(2)(a), a motion must fail when it is based on issues that were [*3]"previously determined on the merits upon an appeal... unless since the time of such appellate determination there has been a retroactively effective change in the law."
Under C.P.L. § 440.10(2)(c), a motion must fail when it is based on issues that could have been raised on direct appeal, but "no such appellate review or determination occurred owing to the defendant's unjustifiable failure to take or perfect an appeal during the prescribed period or to his unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him."
An individual 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" (P. L. § 125.25[2]). The recklessness and depraved indifference elements of the crime have been defined as increasingly distinct from each other over the course of a number of cases. Under People v. Register, 60 NY2d 270 (1983), depraved indifference was measured by an "objective assessment of the degree of risk presented by defendant's reckless conduct." The Register test for depraved indifference was thus one that looked to the surrounding circumstances of a defendant's actions, rather than at his subjective mindset, and found depraved indifference where recklessness was particularly severe. A series of Court of Appeals cases have recently clarified the definition of depraved indifference, rendering it more easily distinguishable from a kind of heightened recklessness. These cases distinguish between intent and depraved indifference, noting that where intent exists, depraved indifference cannot logically be established (See People v. Hafeez, 100 NY2d 253 [2003]; People v. Gonzalez, 1 NY2d 464 [2004]; People v. Payne, 3 NY3d 266 [2004]; and People v. Suarez, 844 N.E.2d 721 [2005]). As expressed by the court in Payne, "[i]ndifference to the victim's life... contrasts with the intent to take it" (People v. Payne, 3 NY3d 266, 270 [2004]). A culminating case in this continuum, People v. Feingold, 7 NY3d 288 (2006), held not only that intent and depraved indifference are mutually exclusive, but also that depraved indifference constitutes a mens rea element of depraved indifference murder, and must therefore be established subjectively. Feingold thus invalidated and overruled Register's objective test.
The Appellate Division considered the issue raised by the defendant in his pro se supplemental brief of whether the evidence sufficiently established the recklessness element of depraved indifference murder, and held that it did. In doing so, the Appellate Division explicitly stated that the evidence presented at trial "was legally sufficient to establish the defendant's guilt of depraved indifference murder beyond a reasonable doubt" (19 AD3d 616 [2005]). This statement suggests that the Appellate Division found the evidence presented at trial not only sufficiently established the element of recklessness, but also sufficiently established all the elements of depraved indifference murder. It is the explicit function of C.P.L. § 440.10(2)(a) to prevent this Court from overturning appellate decisions made on the merits. (See People v. Graves, 2005 NY Slip Op. 50596U [Sup. Ct., Queens Co.]). This Court may not vacate defendant's conviction on grounds that the element of recklessness was inadequately established unless there were a retroactive change in law since the time the conviction became final. There has been no such change with regard to the recklessness element. Therefore, an argument that recklessness was inadequately supported by the evidence is precluded under C.P.L. § 440.10(2)(a).
[*4]
The change in law announced in Feingold firmly and finally altered the depraved indifference element of depraved indifference murder, but did not change the recklessness element. This change in law, moreover, is not retroactive, and therefore has no bearing on defendant's conviction, which was finalized a year before the Court of Appeals rendered the Feingold decision (Policano v. Herbert, 7 NY3d 588 [2006]).
The defendant now raises the issue of evidentiary sufficiency once again, but on different grounds. He asserts that the prosecution failed to prove the element of "circumstances evincing a depraved indifference to human life." The defendant argues that the evidence did not establish depraved indifference even under Register and that Feingold's requirement that depraved indifference be proven as a culpable mental state or mens rea element was not sufficiently established. The argument that depraved indifference was inadequately established under Register fails because defendant could have raised this argument on direct appeal. (C.P.L. § 440.10[2][c]).
Defendant's argument concerning the application here of Feingold's reconfiguration of depraved indifference as a culpable mental state rather than a factual setting viewed objectively also fails. As established in Policano, the change in law is not retroactive. Feingold was the culmination of a continuum of cases distinguishing intent and depraved indifference. Those prior cases (Hafeez, Gonzalez, Payne, and Suarez), however, did not implicitly or explicitly declare depraved indifference to be a mens rea element. The Policano majority acknowledged that the law could be interpreted as having begun to evolve perceptibly before Feingold was decided, but nevertheless held that Feingold was to serve as the marker for a change in law, and that its holding would not apply retroactively.[FN2] The Policano majority justified non-retroactivity as a measure to prevent a flood of post judgment motions made under C.P.L. § 440, such as the defendant's, from overwhelming the court system.[FN3] In her dissent, Chief Judge Kaye insisted that the cases that came between Sanchez and Feingold did not, in fact, constitute any change in the law, but merely reiterated a distinction that had been made explicit in both People v. Gallagher, 69 NY2d 525 (1987) and People v. Wall, 29 NY2d 836 (1971). Under either the majority's or Chief Judge Kaye's view, Policano renders Feingold non-retroactive even for a case such as the defendant's in which the conviction was finalized before Feingold, but after Payne.
Even if the defendant's argument under Register were not precluded, and if the change in law established in Feingold were in fact retroactive, the defendant's argument would nonetheless fail because the circumstances of this case, understood in the light most favorable to the prosecution, constitute one of the rare instances in which a one-on-one killing may fulfill the elements of depraved indifference murder. Typically, conduct must put multiple individuals at risk in order to satisfy the "circumstances evincing a depraved indifference to human life" element. However, courts recognize an exception for conduct directed toward a single individual when the conduct is characterized by "uncommon brutality" (Payne, 3 NY3d at 291 and citations therein). The Feingold majority pointed out that, while the case law between the Register and Feingold decisions narrowed the definition of depraved indifference, this narrowing applied particularly to the exclusion of "one-on-one shootings or stabbings" (Feingold, 7 NY3d at 294).
[*5]
Strangulation can reasonably be categorized as an act of uncommon brutality, and is readily distinguishable from a shooting or stabbing. The Court of Appeals has held that, while shooting repeatedly at a single individual does not constitute depraved indifference, actions such as prolonged beating resulting in death may satisfy the depraved indifference element even though directed at a single victim (Payne, 3 NY3d at 271-272). The Court in Payne particularly highlighted examples of brutality directed against children or intoxicated victims, who were easily physically overpowered. Here, the defendant overwhelmed the victim, beating her, and finally strangling her, causing her death over the course of several minutes. Such an act of strangulation does not require that the perpetrator act with an intent to kill. In finding that the defendant was guilty of depraved indifference murder, the jury implicitly found that the defendant did not act with such an intent. In fact, the defendant testified repeatedly that, in the course of strangling her, he killed the victim by mistake.
That such a "mistake" might arise from the act of continuous strangulation is quite possible: strangulation is different as a form of aggression from shooting or stabbing, in that there is no clear line between strangulation as restraint and strangulation to cause death. A shooting or stabbing is likely to cause death or serious injury almost by definition, while strangulation causes death only if sustained for a period of time or done with extreme force.
The defendant claims that his acts could only be viewed as intentional, not as evincing reckless depraved indifference to human life. In response, the People maintain that the defendant's purported intoxication at the time of the strangulation would have further blurred the line between intent to kill and intent to restrain. This blurring would increase the likelihood that a jury could reasonably find that the defendant acted with the recklessness necessary for depraved indifference murder, but without intent to kill. The People maintain that because the defendant was intoxicated, the jury could have found that he was less aware that his conduct was causing death, or that his intoxication inhibited his motor control, reducing his ability to stop restraining the victim.
This Court rejects the People's analysis. While it is true that "[t]here was evidence of intoxication presented at trial which the jury could have found negated the defendant's intent to kill (see Penal Law 15.25; People v. Gonzalez, 6 AD3d 457 [2004]; People v. Taylor, 245 AD2d 399 [1997]; People v. Bergamini, 223 AD2d 548, 549 [1996]) without negating the defendant's reckless state of mind (see People v. Johnson, 277 AD2d 702, 704[2000])" (People v. Lampon, __A.D.2d__, 2007 WL 765937 [2007]), this Court believes that it is far more likely that the jury rejected the defendant's contention that he was too intoxicated to form a criminal intent. It is likely that the jury found that the defendant did not form the intent to kill, but acted under circumstances evincing a depraved indifference to human life.[FN4] If the change in law established in Feingold were in fact retroactive, a reasonable juror could have found the defendant's conduct to have met the elements of depraved indifference murder. In People v. Coon, 34 AD3d 869 (2006), the Third Department, applying Feingold, held that intoxication sufficient to negate an intent to kill would also negate the mens rea of depraved indifference (see also People v. Gray, [*6]13 Misc 3d 1233[A], 2006 WL 3328394).[FN5] While the analysis of depraved indifference as a culpable mental state is not to be applied retroactively, this Court believes that the change in law, even if it were applicable, would not require a reversal here. The defendant's conduct supports a finding that he acted without intent to kill, not because he was too intoxicated to form such an intent, but rather because he acted with the expressly distinct mens rea of depraved indifference.
Under the pre-Feingold objective test used at the time defendant's conviction became final, the factual context of the defendant's conduct satisfied the element of depraved indifference. These circumstances would also support a finding that the defendant's subjective mental state was one of complete disregard for his victim's life, and would therefore satisfy Feingold's requirement that depraved indifference be established as a mens rea element if that requirement had applied.
II. Ineffective Assistance of CounselThis Court has the discretion to deny defendant's request that his conviction be vacated on the basis of ineffective assistance of counsel under C.P.L. 440.10(3)(b). This section allows the Court to deny any motion brought on grounds "previously determined on the merits upon a prior motion or proceeding in a court of this state, other than an appeal from the judgment... unless since the time of such determination there has been a retroactively effective change in the law." In rendering its decision on defendant's motion for a writ of error coram nobis, the Appellate Division decided the issues of trial and appellate counsel's alleged ineffectiveness on the merits on January 9, 2007 (36 AD3d 630).
Denial of the motion on these grounds is warranted because neither trial counsel nor appellate counsel's alleged inadequacies were significant enough that they did not provide "meaningful representation," the minimum standard required for effective assistance of counsel (People v. Baldi 54 NY2d 137, 147 [1981]; see also, People v. Benevento, 91 NY2d 708, 712 [1998]). The defendant alleges that trial counsel's strategic decision to focus the closing argument on disproving intent rendered the representation ineffective. Though the minimum standard for effective assistance of counsel is not clear cut, mere strategic disagreement, where retrospect might cast any losing approach as "ineffective," is not adequate to render representation ineffective under the law (See, People v. Flores, 84 NY2d 184, 187 [1994]; People v. Benn, 68 NY2d 941, 942 [1986]; People v. Baldi, 54 NY2d at 146 [1981]).
While appellate counsel did not raise the issue of whether the trial evidence proved recklessness in the original brief, counsel did apply to the court for permission to file a supplemental brief. When this permission was denied, counsel provided the defendant with the necessary arguments to file a pro se supplemental brief, which was considered by the appellate court. Counsel also raised this issue of evidentiary sufficiency at oral argument. Any disadvantage defendant might have suffered from the exclusion of the argument from the original brief was thus remedied by the Court's acceptance of defendant's pro se supplemental brief and counsel's oral argument. The defendant's assertion that appellate counsel's failure to argue that the depraved indifference element was insufficiently established at trial also fails. At the time of appeal, no change in the law regarding the depraved indifference element had occurred. The fact [*7]that appellate counsel did not challenge the sufficiency of the evidence to establish depraved indifference even under an objective standard does not render his representation meaningless.
III. Manslaughter in the Second Degree
Defendant's claim that this Court's refusal to charge the jury with the lesser crime of Manslaughter in the Second Degree at trial is barred under C.P.L. 440.10(2)(a). Defendant raised this issue on direct appeal in his pro se supplemental brief, and the Appellate Division held that this Court's exclusion of the count was proper "since there was no reasonable view of the evidence that the defendant committed the lesser offense and not the greater offense" (19 AD3d 616 [2005]).
Conclusion
Defendant's motion raises no issues that he did not or could not have raised either on direct appeal or in his prior motion for a writ of error coram nobis. Therefore, in the absence of any relevant retroactive change of law, defendant's entire motion is procedurally barred.
Accordingly, defendant's motion is denied in all respects.
This constitutes the Decision and Order of the Court.
___________________
J.S.C.
Footnotes
Footnote 1:See People v. Policano, 7 NY3d 588, 682 (2006), citing Clay v. United States, 527 U.S. 522, 527 (2003) and Supreme Court Rule 13[1] (a conviction becomes final when the time to file a petition for writ of certiorari in the U.S. Supreme Court expires). Defendant's conviction thus became final 90 days after the New York Court of Appeals denied review.
Footnote 2: Policano, 7 NY3d at 603.
Footnote 3: Id. at 604.
Footnote 4: See Payne, 3 NY3d at 270. "Indifference to the victim's life contrasts with the intent to take it."
Footnote 5: One must wonder, however, how it is possible that intoxication could negate an intent to kill, and simultaneously negate an indifference to the taking of a human life.