On or about July 13, 2010,^[FN1] Defendant filed a pro se motion to vacate his conviction on the grounds of ineffective assistance of counsel, after a jury trial, of Murder in the Second Degree, PL 125.25(2), on November 25, 2003.^[FN2] Defendant now contends that he was denied effective assistance of counsel during his trial claiming that (1) his counsel did not object to the submission to the jury of "dual counts" of second degree murder - one for intentional murder and the other for depraved indifference murder - and that (2) counsel did not object to the verdict, in which the jury acquitted Defendant of intentional murder but found Defendant guilty of depraved indifference murder. Defendant's Memorandum of Law (hereafter referred to as "Def. Mem."), dated June 14, 2010, p. 2.

The People filed an opposition to Defendant's motion on November 30, 2010.

For the reasons set forth below, Defendant's motion to vacate his conviction is

granted to the extent that a hearing on the matter is ordered. CPL 440.30(5).

I.INTRODUCTION

At the time of Defendant's conviction in November 2003, the law pertaining to the crime of Depraved Indifference Murder, PL 125.25(2), was in a state of flux as to the requisite mens rea for the crime as well as the legal sufficiency of such a charge in a case where there was a single victim killing.

The jury in Defendant's case — which was a single victim crime where no one else was endangered — was charged with alternative counts of Intentional Murder, PL 125.25(1), and Depraved Indifference Murder, PL 125.25(2)^[FN3], and was instructed that the requisite mens rea for depraved indifference murder was recklessness based upon an objective assessment of the degree of risk presented by defendant's conduct. They were further instructed that, although they could consider the two second degree murder counts in any order, if they found Defendant guilty on one count, they would [*2]have to find him "not guilty" as to the other count. Defendant's trial counsel did not object to the submission of dual counts of second degree murder to the jury nor to the

instructions to the jury by the Court.^[FN4] Tr. at pp. 396-98.

On November 25, 2003, the jury acquitted Defendant of Intentional Murder but found Defendant guilty of Depraved Indifference Murder. Defendant's trial counsel did not object after the verdict was rendered. Tr. at pp. 680-81.

II.FACTUAL BACKGROUND

On July 16, 1998, the victim Joseph Bauer was celebrating his 26th birthday with two friends in the Bronx. Trial Transcript ("Tr.") at pp. 85-103. Later, after Bauer's two friends had left, Bauer was seen by three police officers who saw him staggering toward them covered in blood. Tr. at pp. 178-80, 183, 223-232, 254-56. Later that same morning, Bauer died from four stab wounds caused by a single-edged knife. Tr. at pp. 234, 445, 451, 455, 470.

Kenneth McKenzie, the only witness who testified to the events that caused Bauer's death, testified for the People at trial. McKenzie acknowledged that he had spent the evening before witnessing the attack on Bauer in a nightclub smoking a mixture of marijuana and cocaine and drinking alcohol. Tr. at pp. 299-303. McKenzie testified that after he left the club he saw a group of individuals, including Defendant, arguing with Bauer. Tr. at pp. 315-16, 322-25. He testified that he saw the men chase Bauer and, when Bauer fell, saw them jumping him and "kicking and beating him while he was down." Tr. at pp. 324-33. McKenzie also testified that he saw Defendant "[step] back" and "[pull] out a folding knife and [start] stabbing [Bauer]" multiple times during the course of about a minute and that Defendant then fled. Tr. at pp. 333-335.

III.PROCEDURAL HISTORY OF THIS CASE

As noted above, on November 25, 2003, Defendant was convicted of depraved indifference murder. On June 23, 2004, Defendant perfected his appeal of the conviction contending, inter alia, that the depraved indifference murder conviction was against the weight of evidence; that the charge was legally insufficient; and that Defendant was denied effective assistance of counsel. See Ex. 1 to People's Memo in Opp., Brief to the Appellate Division - First Department for Defendant-Appellant, dated September 12, 2005.

Three years later, on June 21, 2007, the Appellate Division, First Department, affirmed the conviction. The Appellate Division held that, although Defendant couched his argument in weight of the evidence language, Defendant's claim that the trial court had erred in charging depraved indifference murder when the evidence demonstrated an intentional act actually was a claim of legal sufficiency which Defendant had not preserved for review. The Appellate Division held that, as Defendant's trial counsel had failed to specifically object at trial to that charge and instead had made only a general motion for a trial order of dismissal at the trial, the Appellate Division review was limited to the weight of the evidence. People v. Brown, 41 AD3d 261, 262 (1st Dept. 2007). [*3]The Appellate Division noted that Defendant's failure to object before jury deliberation to the submission of the depraved indifference murder charge to the jury was a waiver of any claims of error with respect thereto. 41 AD2d at 263.

In conducting its weight of the evidence review, the Appellate Division determined that the appropriate law for the depraved indifference murder charge against which the evidence would be weighed was the law as it existed at the time of trial. 41 AD2d at 263. The Appellate Division then determined that the verdict was not against the weight of evidence as assessed under the governing precedents concerning the elements of depraved indifference murder at the time of trial, noting that the gang aspect of the crime supported the jury's finding that Defendant's actions evinced a depraved indifference to human life.^[FN5] Id. at 263-64

The Appellate Division also noted that the verdict would survive a weight of the evidence analysis concerning the appropriateness of a depraved indifference murder charge in the context of a single victim killing even under the law prevailing at the time of the appellate decision. 41 AD2d at 264. The Appellate Division determined that the weight of the evidence adduced at trial could result in a conviction in Defendant's case as the facts would fit within one of two fact patterns specified under prevailing law pertaining to the depraved indifference charge and one-on-one killings.^[FN6]

The Appellate Division further held that Defendant's argument that his trial counsel's failure to object to the depraved indifference count constituted ineffective assistance of counsel was outside the record available for its review and therefore could not be considered.

On August 23, 2007, the Court of Appeals denied leave to appeal without [*4]comment. People v. Brown, 9 NY3d 873 (2007). Ninety days later, Defendant's time to file a writ of certiorari in the United States Supreme Court expired and his conviction became final. Rules Sup. Ct., rule 13(1); Clay v. United States, 537 U.S. 522, 527, 123 S. Ct. 072 (2003).

On December 28, 2007, Defendant filed a federal petition for a writ of habeas corpus in the United States Court for the Southern District of New York ("Southern District") contending that the evidence adduced at trial was legally insufficient to establish his guilt of depraved indifference murder.

On March 3, 2009, the Southern District granted Defendant's petition, addressing Defendant's state court procedural default of having failed to object at trial to the charge of depraved indifference murder and determining that it would have been futile for Defendant to have objected to the charge and that Defendant suffered actual prejudice.^[FN7] Brown v. Ercole, 2009 WL 857625, *4-6 (S.D.NY 2009).

The Southern District then conducted a denovo review of the merits of Defendant's claim and found that the conviction could not stand as a matter of law. Id. at *6-8.

Thereafter, the People appealed the Southern District's grant of the writ of habeas corpus.

On November 16, 2009, the United States Court of Appeals for the Second Circuit ("Second Circuit") reversed the Southern District and dismissed the writ, holding that, contrary to the Southern District's determination, Defendant's failure to object to the depraved indifference murder charge at trial was not futile but rather constituted a state court procedural default barring federal habeas review. Ercole v. Brown, 353 Fed. Appx. 518 (2nd Cir. 2009).

The Second Circuit found that no cause existed to excuse Defendant's procedural state court default in failing to object at trial to the charge of depraved indifference murder. 353 Fed. Appx. at 520. The Second Circuit noted that it already had rejected a comparable futility argument in a similar habeas petition in 2006 regarding a depraved indifference murder charge and, that under such controlling [*5]precedent, Defendant could not prevail on that claim.^[FN8]

The Second Circuit also pointed to two New York cases that had been decided in the two years preceding Defendant's conviction — People v. Hafeez, 100 NY2d 253, 258-59 (2003) and People v. Gonzalez, 302 AD2d 870, 871-72 (4th Dept. 2003) - in which the New York appellate courts had reversed depraved indifference murder convictions on the grounds that the evidence was legally insufficient to show that a trial objection to the charge of depraved indifference murder in this case would not have been futile or unforeseeable. Id. at 520.

The Second Circuit held that, as it found no good cause for the procedural default, it did not need to consider whether Defendant had suffered prejudice. Id. The Second Circuit also noted that Defendant "may have redress in state court . . . ." 353 Fed. Appx. at 520-21.

Defendant now has filed this CPL 440.10 motion to vacate his conviction.

IV.THE LAW OF DEPRAVED INDIFFERENCE MURDER

Depraved Indifference Murder is governed by PL 125.25(2) which provides that a person is guilty of murder in the second degree 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 . . ."

Both before and after Defendant's trial and conviction, the law as to depraved indifference second degree murder changed dramatically with respect to the requisite mens rea for the crime as well as to the crime's applicability to cases involving single victim killings.

At the time of Defendant's trial, in November 2003, the governing precedent concerning the elements of the crime of depraved indifference murder was articulated by the Court of Appeals in People v. Register, 60 NY2d 270 (1983), cert. denied, 466 U.S. 953 (1984). In Register, the Court of Appeals held that the requisite mens rea for depraved indifference murder was recklessness, and the focus was upon an objective assessment of the degree of risk presented by defendant's reckless conduct. People v. Register, 60 NY2d 270, 276-78 (1983), cert. denied, 466 U.S. 953 (1984).^[FN9] In Register, the Court of Appeals had held that to meet their burden of depraved indifference murder, the People must show that the defendant's acts were "imminently dangerous and presented a high risk of death to others." 60 NY2d at 274. [*6]

Register involved a shooting during a barroom argument, wherein that defendant shot at one man, injuring another, then stepped forward and shot a third man in the stomach at close range, injuring him. Id. at 272. As bystanders tried to remove the injured man to the hospital, the victim walked by, and the defendant, for no explained reason, turned and fired his gun, killing him. Id.

Pursuant to Register, facts which established an almost certain risk of death that presented compelling circumstantial evidence of intent demonstrated depraved indifference. Id. at 276; see also Sanchez, 98 NY2d 373, 378 (2002)(where defendant's actions created "a transcendent risk" of causing death, "the level of manifested depravity needed to establish [depraved indifference murder]" was "readily" met).

At the time that the law of depraved indifference murder was governed by Register, a jury could be charged with both intentional murder and depraved indifference murder so long as there was any reasonable view of the evidence which would have permitted the jury to find that the defendant's actions were either intentional or depraved. See, e.g., People v. Gallagher, 69 NY2d 525 (1987); People v. Longo, 182 AD2d 1019 (3d Dept. 1992); Sanchez, 98 NY2d at 376, 384-85.

Twenty-two years later, in 2002, in People v. Sanchez, the Court of Appeals revisited the meaning of depraved indifference murder and held that the recklessness standard in a depraved indifference murder conviction required a showing of heightened recklessness or "egregious" recklessness. 98 NY2d at 380, 383. The Court also revisited the appropriateness of charging intentional murder and depraved indifference murder as dual alternative charges. Id. at 384-85.

In Sanchez, the victim and the defendant were boyfriends of two sisters. They argued at a family gathering and the defendant shot the victim through a partially closed door near where small children were playing. Id. at 375-376. There, the Court of Appeals found that Defendant's act, which put those children at risk, met the heightened standard of recklessness.

The next major shift in the law occurred eleven months after the Court of Appeals decided Sanchez, and four months before Defendant's trial in this case, in June 2003, when the Court of Appeals held that a defendant's acts must have been "imminently dangerous and presented a very high risk of death to others" to support a conviction for depraved indifference murder. People v. Hafeez, 100 NY2d 253, 259 (2003).^[FN10]

In Hafeez, the Court of Appeals reversed a depraved indifference murder conviction for legally insufficient evidence and imposed a limiting constraint on the recklessness standard applicable to depraved indifference murder by holding that the grave risk of death presented by the defendant's conduct must extend to someone other than the victim. Id.

In that case, the defendant was convicted of depraved indifference murder when [*7]he and two friends lured the victim out of a bar to enact revenge for a bar fight months before. Id. at 256. Once defendant had pushed the victim up against a wall, he moved aside to allow his co-defendant to take over, which he did, by fatally stabbing the victim in his heart. Id. The Court of Appeals reversed the conviction holding that this single victim killing, where no danger to others existed, did not constitute depraved indifference murder. 100 NY2d at 259.

In another 2003 case, decided by the Fourth Department a few months before Defendant's trial, that appellate court also reversed a depraved indifference murder conviction when the dual charges - intentional murder and depraved indifference murder - were given to the jury. In that case, where defendant had entered a barber shop and shot the victim ten times with one other person present, and trial counsel did specifically object to the depraved indifference murder charge, the objection was denied by the trial court, but the appellate court reversed on the grounds of legally insufficient evidence. People v. Gonzalez, 302 AD2d 870 (4th Dept. 2003). In 2004, the Court of Appeals upheld that reversal. 1 NY3d 464 (2004).

In 2004, in People v. Payne, a case where the defendant had shot his neighbor and friend of 20 years, after the neighbor had complained to the defendant's girlfriend about their dog, by walking to his neighbor's front door with a loaded 12 gauge shotgun, arguing with his neighbor, then shooting him at point blank range in the chest, the Court of Appeals held that, "[a]bsent the type of circumstances in, for example, Sanchez (where others were endangered), a one-on-one shooting or knifing (or similar killing) can almost never qualify as depraved indifference murder." 3 NY3d at 271.

In 2005, in People v. Suarez, 6 NY3d 202, 844 N.E.2d 721, 727-28 (2005), the Court of Appeals clarified the evolution of their holdings with respect to the charge of depraved indifference murder in cases with single victim killings where only the victim was endangered. 844 N.E.2d at 727-8. There, the Court of Appeals identified two fact patterns where a defendant could be convicted of depraved indifference murder when only a single person is endangered by the defendant's actions: (1) a fact pattern where a defendant intended neither to seriously injure, nor to kill, but abandoned a helpless and vulnerable victim in circumstances where the victim was highly likely to die (id. at 729 ^[FN11]); and (2) a fact pattern where a defendant - acting with a conscious objective not to kill but to harm - engaged in torture or a brutal, prolonged and ultimately fatal course of conduct against a particularly vulnerable victim. 844 N.E.2d at 727-8.^[FN12]

In Suarez, where defendant stabbed her former boyfriend in the chest during an argument, and then immediately called 911 and requested an ambulance, the Court of Appeals held that this was not, as a matter of law, depraved indifference murder, noting [*8]that "the mere presence of third persons at the scene of a killing does not convert an intentional homicide directed at a particular victim into depraved indifference murder unless others are actually endangered." Id. at 730, fn 7.

In 2006, while Defendant's appeal was sub judice in the First Department, the Court of Appeals overturned Register in its decision in People v. Feingold, redefining the legal definition of depraved indifference and explicitly rejecting its earlier decision in Register. 7 NY3d 288, 819 N.Y.S.2d 691 (2006).

In Feingold, the Court of Appeals held that, in determining guilt for depraved indifference, a jury must consider the defendant's mens rea, not merely an objective evaluation of defendant's conduct and the surrounding circumstances. 7 NY3d at 294-95. "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 doesn't care whether grievous harm results or not." 7 NY3d at 296.

Notably, in Feingold, the Court of Appeals pointed to its analysis in Suarez in which it had determined that "rarely can depraved indifference murder apply to the killing of a single victim" and stated that "[b]eginning with Hafeez, the Register/Sanchez rationale was progressively weakened so that it would no longer support most depraved indifference murder convictions, particularly one-on-one shootings or stabbings." Feingold, 7 NY3d at 294.

In 2006 after it had decided Feingold, the Court of Appeals set forth in Policano v. Herbert the circumstances under which the dramatic change in the definition of depraved indifference murder would be applied retroactively. 7 NY3d 588 (2006).^[FN13]Thereafter, in 2008, in People v. Jean-Baptiste, the Court of Appeals held that, even though a trial may have occurred while Register was the prevailing standard, in a direct appeal of that case the depraved indifference murder standard set forth in Feingold would be the appropriate legal standard on review. 11 NY3d 539, 542 (2008).

V.CONCLUSIONS OF LAW

In order to prevail on his motion to vacate his conviction on the grounds of ineffective assistance of counsel in New York, Defendant must show that his trial attorney committed an error sufficiently egregious and prejudicial such that Defendant did not receive a fair trial. People v. Baker, 14 NY3d 266, 270 (2010), quoting People v. Caban, 5 NY3d 143, 152 (2005). The effectiveness of Defendant's trial counsel is evaluated in the context of his actions with respect to the state of the law at the time of the trial in November 2003. See People v. Stephen Sanchez, 76 AD3d 122 (1st Dept. 2010).

Here, an analysis of the effectiveness of Defendant's trial counsel must be conducted not simply against the Register standard for depraved indifference murder, but, in light of the movement of the law at that time, also against the standards set in [*9]Hafeez and Gonzalez.

Thus, in this case, as set forth more fully below, the Court finds that, in light of the existing law at the time of the trial on the issue of depraved indifference murder in a single victim killing case where no one else was endangered, it appears that Defendant's trial counsel should have specifically objected to the charge of depraved indifference murder submitted to the jury as well as to the verdict.

Moreover, there does not appear to be a viable sound legal basis for trial counsel's failure to object to the charges and to the jury verdict. People v. Hafeez, 100 NY2d 253 (2003); People v. Gonzalez, 302 AD2d 870 (4th Dept. 2003).

The People's contention that Defendant may have chosen not to object to the dual counts so that, after an acquittal on intentional murder, Defendant secured the possibility that the depraved indifference conviction might be set aside on appeal, stands the argument on its head. Defendant was precluded from appellate review of the legal sufficiency of that charge because of trial counsel's failure to specifically object to that charge. See People v. Brown, 41 AD3d 261, 262 (1st Dept. 2007). The cases cited by the People do not support the People's contention that not objecting was a strategic decision by trial counsel.^[FN14] See Affirmation of Thomas R. Villecco, Assistant District Attorney, in Opposition to Motion, and Memorandum of Law ("Memo in Opp."), filed on November 30, 2010.

The People's contention that trial counsel may have strategically not objected to the charge of depraved indifference to prevent the jury from convicting on intentional murder - if they were faced with only the intentional murder and manslaughter charges - also is farfetched. See People's Memo in Opp. at p. 9. Essentially, the People posit that it could have been sound legal strategy to not object to the depraved indifference charge because somehow fewer options available to the jury for a murder conviction would have increased the Defendant's chance of being convicted of a murder charge. Such a contention seems to defy both math and logic.

The Court notes that the top counts charged at trial — intentional murder and depraved indifference murder in the second degree — were charged in the alternative so that the jury could only convict on one count, not both. In addition, both then and now, a conviction for either crime carried the same consequence - a minimum sentence of no less than 15 years to life imprisonment. PL §§ 70.00(2)(a) and (3)(a)(i). Thus, any benefit to an acquittal on only one of the dual charges is illusory at best as Defendant was convicted of the alternate charge of equal consequence. Allowing such dual charges to be made to the jury seems only to have given the People an extra opportunity to obtain a murder conviction.

The fact that Defendant did not submit an affirmation from his former counsel is not fatal to his motion to vacate. Affidavits of trial counsel are "not necessarily required" in support of a 440.10 motion based upon ineffective assistance of counsel. People v. [*10]Rosales, 2009 NY Slip. Op. 51770U, *5-6, 24 Misc 3d 1236A (Sup. Ct., Bronx Co. 2009). In this situation, where Defendant's application is adverse and hostile to his trial attorney, requiring Defendant to obtain such an affirmation has been held to be wasteful and unnecessary. People v. Radcliffe, 298 AD2d 533, 534 (2nd Dept. 2002); Rosales, 2009 NY Slip. Op. 51770U, *5-6. Moreover, obtaining such an affirmation in this case likely would be fruitless since, as noted by the People, Defendant's trial counsel apparently already had informed the People that it would be difficult for him to recollect his trial strategy. People's Memo in Opp. at p.12.

Finally, contrary to the People's contention, Defendant did not delay in asserting his claim of ineffective assistance of counsel. As reflected in his appeal in 2003, Defendant asserted the claim at the outset. See Ex. 1 to People's Memo in Opp.

It appears that trial counsel's failure to object at trial prejudiced Defendant as he was precluded not only from the trial court's consideration of the issue against the backdrop of Hafeez and Gonzalez but also from an appellate review of the legal sufficiency of the depraved indifference murder charge that was submitted to the jury. Even if the trial court were to have failed to grant the objection, such appellate review of the legal sufficiency of that charge in Defendant's case likely would have resulted in a reversal of the conviction and remand of the case for retrial on the remaining counts of Manslaughter in the First Degree, PL 125.20(1), and Gang Assault in the Second Degree, PL 120.06.^[FN15]

Nevertheless, although it seems that Defendant has been prejudiced and it appears to this Court that there could be no sound legal strategy for counsel's failure to object, as no affidavit has been submitted by either side as to trial counsel's strategy, either articulating a basis, or stating that there was no basis, the Court is constrained to hold a hearing to elicit any and all facts which may bear on the issue of trial counsel's strategy. See CPL 440.30(5) and 3(a).

VI.CONCLUSION

For the reasons set forth above, the Court grants Defendant's motion to vacate his conviction to the extent that the Court orders a hearing. In light of the prevailing law at the time of Defendant's trial, as Defendant's motion papers "tend to substantiate all the essential facts" necessary to support his claim of ineffective assistance of counsel, the Court finds that a hearing is required. People v. Sherk, 269 AD2d 755, 704 N.Y.S.2d 401, 401-02 (4th Dept. 2000). See also CPL 440.30(5).

The Court has appointed David Bertan, 18-b counsel, to represent Defendant for the purposes of the motion and hearing. People v. Barnes, 143 AD2d 499, 500 (4th Dept. 1988 (court can appoint counsel on 440.10 motion); People v. Richardson, 159 [*11]Misc 2d 167, 172 (Crim. Ct. Kings Co. 1993)(court has inherent power to assign counsel in a 440 motion where a hearing is ordered). See also County Law § 722.

The motion is calendared for a scheduling conference on January 14, 2011, at 9:30 a.m.

The Court considered the following in addressing the motion: Notice of Motion, dated June 2010, and Affidavit of Defendant in Support of Motion, sworn to July 13, 2010; Affirmation of Thomas R. Villecco, Esq., Assistant District Attorney, in Opposition to Motion, and Memorandum of Law, filed on November 30, 2010, and exhibits thereto; Trial Transcript, November 13-24, 2003; Decision of Appellate Division - First Department (People v. Brown, 41 AD3d 261, 262 (1st Dept. 2007)); Decision of United States District Court, Southern District of New York (Brown v. Ercole, 2009 WL 857625 (S.D.NY 2009)); and Decision of United States Court of Appeals for the Second Circuit (Ercole v. Brown, 353 Fed. Appx. 518 (2nd Cir. 2009)).

This constitutes the Decision and Order of this Court.

Dated: Bronx, New York

January 13, 2011

E N T E R:

_________________________

COLLEEN D. DUFFY

Justice of the Supreme Court