On July 31, 1997, judgment was entered against the defendant in Supreme Court, Bronx County (Price, J.), convicting him after a jury trial of murder in the second degree (PL 125.25 [2] [depraved indifference]), and sentencing him to an indeterminate term of life imprisonment with a mandatory minimum period of twenty-five years.

By motion submitted June 1, 2012, defendant moved pro se to vacate his judgment of conviction pursuant to Criminal Procedure Law 440.10 (1) (g) and (h). By decision and order dated September 28, this court denied defendant's motion. This expands that decision.

On March 25, 1996, the defendant, using a hammer, bludgeoned Jose Ledee twenty-three times over his head and back, causing multiple injuries that resulted in his death. By his own admission, the defendant was aware that the vibrations emanating from the blows he was inflicting would make sure Ledee "finally went down." The defendant surrendered for arrest the following day.

On April 15, 1996, defendant was charged by indictment with two counts of murder in the second degree (PL 125.25 [1] and [2]), and one count each of manslaughter in the first degree (PL 125.20 [1]), criminal possession of a weapon in the fourth degree (PL 265.01 [2]), and menacing in the second degree (PL 120.04 [1]). [*2]

As noted, judgment was entered against the defendant after a jury trial in the Supreme Court, Bronx County (Price, J.), on July 31, 1997, convicting him of depraved indifference murder and sentencing him to an indeterminate term of life imprisonment. On direct appeal to the Appellate Division, First Department, defendant argued that this court erred by declining to submit the charge of manslaughter in the second-degree to the jury for consideration as a lesser-included offense of depraved indifference murder. Defendant also argued this court failed to properly explain the justification defense relative to the crimes for which he was charged.

On March 30, 2000, the Appellate Division unanimously affirmed defendant's conviction, finding that "the jury could not have reasonably found defendant guilty of reckless conduct without at the same time finding that the reckless conduct occurred in circumstances evinced a depraved indifference to life" and that the relationship between the justification defense and the charged crimes was proper (People v Porter, 270 AD2d 205 [1st Dept 2000]). On July 17, 2000, the Court of Appeals denied defendant's application for leave to appeal from the Appellate Division (Wesley, J.) (People v Porter, 95 NY2d 856 [2000]).

Defendant now seeks to vacate his judgment of conviction pursuant to CPL 440.10 (1) (h), claiming that the evidence presented at trial established his actions as intentional, and were, therefore, legally insufficient as a matter of law to support a finding of guilt of depraved indifference murder pursuant to People v Feingold, 7 NY3d 288 [2006]). Defendant further moves, pursuant to CPL 440.10 (1) (g), to vacate his conviction because newly discovered evidence, which establishes his actual and legal innocence of depraved indifference murder, could have not been produced at trial even with due diligence.

The People, in opposing defendant's motion, argue his application must be denied in all respects because: (1) he failed to raise this claim on direct appeal; (2) Feingold is not retroactive, and; (3) even under Feingold, the evidence was legally sufficient to support the conviction of depraved indifference murder. The People also argue that defendant failed to satisfy his burden of demonstrating actual innocence (Dunham v Travis, 313 F3d 724 (2d Cir [2002]).

CPL 440.10 (2) (c) provides that

"the court must deny a motion to vacate a judgment when . . . [a]lthough sufficient facts appear on the record . . . to have permitted . . . adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure to take or perfect an appeal . . . or to his unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him" (see CPL 440.10 [2] [c]).

Indeed, the People correctly argue that defendant's motion must be summarily denied pursuant to CPL 440.10 (2) (c) because his claim is record-based and should have been raised on direct appeal. This court agrees.

Defendant's claim is essentially predicated on the issue argued in People v Gonzalez, (160 AD2d 502 [1st Dept 1990]), which was decided nine years before defendant perfected his appeal. In Gonzalez, the defendant and two co-defendants, each possessing loaded firearms, simultaneously fired at the victim from a distance of approximately 10 feet. The Appellate Division, in reversing defendant's conviction, held that under those circumstances the trial court erred in submitting the charge of depraved indifference murder to the jury as an alternative for intentional murder because no reasonable view of the evidence supported a finding that the [*3]shooting was reckless (Gonzalez at 508). Defendant reasons, therefore, that this court erred as well by instructing the jury to consider both depraved indifference murder and manslaughter, in the alternative (if they found him not guilty of intentional murder). Considering, however, that Gonzalez had been decided long before defendant's appeal, he conspicuously neglects to demonstrate that his failure raise this issue on direct appeal was justifiable.

Assuming defendant's motion is not procedurally barred, which it is, his retroactivity argument would fail. The depraved indifference standard at the time of defendant's conviction (1997) and appeal (2000) was governed by People v Register, (60 NY2d 270 [1983]), and its progeny. In Register, the Court of Appeals specified that the mens rea required the People to establish "defendant's act was imminently dangerous and presented a very high risk of death to others and that it was committed under circumstances which evidenced a wanton indifference to human life or a depravity of mind" (Register at 274). Under that standard, prosecutors could prove depraved indifference murder by demonstrating that the circumstances, viewed objectively, evinced depravity towards human life. The Register standard also explicitly distinguished depraved indifference from manslaughter, which required only that the defendant's conduct presented a "substantial risk" of death (People v Roe, 74 NY2d 20, 24 [1989]).

In 2006, the Court of Appeals overruled Register in People v Feingold, (7 NY3d 288 [2006]), expressly defining "depraved indifference to human life" [a]s a culpable mental state" (Feingold at 296). This is, of course, in contrast to Register's "objectively determined degree-of-risk standard" (Policano v Herbert, 7 NY3d 588, 602-3 [2006]). Indeed, the Second Circuit noted that Feingold overruled the depraved indifference standard established in Register, the latter of which held that depraved indifference describes "the factual setting in which the risk creating conduct must occur" (Hall v Phillips, No. 05 Civ. 01981 [RJH] [RLE], 2010 WL 6612518, [SDNY 2010]). Defendant argues that because Feingold represents a new interpretation of depraved indifference, it must apply retroactively, thus rendering his conviction under Register unlawful. He is incorrect.

Within months of deciding Feingold, the Court of Appeals held its ruling would apply only to pending cases on direct appeal, not collateral judgments of conviction that had become final (Policano, 7 NY3d at 604; See also People v Jean-Baptiste, 11 NY3d 539, 543 [2008]). In determining that retroactive application was not justified, the Feingold Court weighed three factors: "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" (Policano at 603; see also Desist v United States, 394 US 244, 249 [1969]; People v Pepper, 53 NY2d 213, 220 [1981]). Analyzing these factors, the Court noted that the second and third factors were of substantial significance only when, under the first factor, there could otherwise "be a complete miscarriage of justice [where] 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; see Stovall v. Denno, 388 US 293, 297 [1967]). Fact-finding decisions at trial, however, which are far removed from the reliability of proof, have been applied prospectively (Pepper at 221; see e. g., United States v Peltier, 422 US 531 [1975]). [*4]

The purpose of Feingold's new interpretation of circumstances evincing a depraved indifference to human life, the Court said, was intended "to dispel the confusion between intentional and depraved indifference murder" (Policano at 603). Indeed, its objective was merely to stem the tide of improper expansion of depraved indifference murder and "make future homicide prosecutions more sustainable" (People v Suarez, 6 NY3d 202, 217 [2005]). But defendants culpable of committing a vicious intentional murder who were properly charged and convicted of depraved indifference murder under the law as it existed at the time of their convictions are not attractive candidates for collateral relief after the conviction becomes final (Policano at 604; Suarez at 217-218).

As to the other two Pepper factors, the Policano Court found that they also favored nonretroactivity. For years, prosecutors had "relied on Register's objectively determined degree-of-risk formulation when making their charging decisions" (Policano at 604). And, retroactive application would open the door to CPL 440.10 motions for "every defendant to whose case it was relevant, no matter how remote in time and merit" (Pepper at 222). Thus, Feingold's nonretroactivity poses no danger of a miscarriage of justice. Accordingly, defendant's argument for retroactive application is without merit.

Apparently buoyed by Feingold's nonretroactivity, defendant cleverly reconstitutes his claim as one of actual innocence, arguing that his conduct evinced intentional murder thus rendering him innocent of depraved indifference. He does so by initially claiming that irrespective of such nonretroactivity, he is entitled to have his conviction vacated pursuant to 28 USC § 2254. But as the District Attorney correctly points out, such miscarriage of justice claim only acts as an exception to a procedural bar in petitions for writs of habeas corpus, not motions to vacate the judgment.

Defendant further argues his actual innocence claim entitles him to a constitutional challenge review. In order to prevail on such a claim, the defendant must satisfy a stringent threshold: demonstrate the existence of " new reliable evidence-whether it be such as exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial'" (Doe v Menefee, 391 F3d 147, 161 [2d Cir 2004], quoting Schlup v Delo, 513 US 298, 324 [1995]). In Menefee, the Court of Appeals for the Second Circuit noted that the reviewing habeas court must find that by the weight of the new evidence presented, no reasonable juror would find the petitioner guilty beyond a reasonable doubt (Menefee at 163).

Here, in addition to defendant's obvious procedural problem of basing his claim upon a standard of review governing habeas corpus petitions, he fails to present any new evidence, reliable or otherwise, indicative of actual innocence. It is extraordinarily disingenuous, however, to now argue that since the evidence presented at trial, including his own admission, establishes he intentionally killed the victim, it thereby proves his innocence of depraved indifference. In fact, precisely the opposite is true. Such an argument reinforces the jury's finding of guilt, thus invalidating his actual innocence claim. Accordingly, defendant's actual innocence claim is entirely without merit.

Finally, even if Feingold applied retroactively, which it does not, and defendant's claim was not otherwise procedurally barred, which it is, his motion would still be meritless. To grant the relief he seeks, this court would need to somehow find that the evidence presented at trial, viewed in the light most favorable to the defendant, was insufficient to support a finding of depraved indifference murder. Additionally, this court would need to find that the lesser-included offense of first-degree manslaughter was improperly excluded. Neither is remotely plausible.

In fact, the evidence at trial was more than sufficient to support a finding of depraved indifference murder. Not only did the defendant admit to being "out of control" when he viciously attacked the deceased, but the evidence adduced at trial squarely supports that the defendant had acted "wildly." Indeed, the medical examiner's testimony established that the deceased, who was found without a weapon, had been bludgeoned twenty-three times with a hammer. Those blows, inflicted on his head and back, were so severe that a skull fragment had lodged in his brain. Such conduct personifies the quintessential concept of depraved, and constitutes depraved indifference murder under the prevailing law at the time.

For the reasons stated above, defendant's motion to vacate his judgment of conviction pursuant to Criminal Procedure Law 440.10 (1) (g) and (h) is summarily denied in its entirety.

This constitutes the decision and order of the court.

The clerk of the court is directed to forward a copy of this decision to the defendant at his place of incarceration.

Dated: January 16, 2013

__________________________________Richard Lee Price, J.S.C.