People v. Brathwaite
| Decision Date | 11 October 1984 |
| Citation | 472 N.E.2d 29,63 N.Y.2d 839,482 N.Y.S.2d 253 |
| Parties | , 472 N.E.2d 29 The PEOPLE of the State of New York, Appellant, v. Richard BRATHWAITE, Respondent. |
| Court | New York Court of Appeals Court of Appeals |
The order of the Appellate Division, 96 A.D.2d 865, 465 N.Y.S.2d 756, should be reversed, defendant's conviction and sentence for depraved indifference murder and the consecutive sentences for his two convictions of felony murder reinstated, and the case remitted to the Appellate Division for consideration of the facts (CPL 470.40, subd. 2, par. 470.25, subd. 2, par. ).
Defendant was charged, in the fifth count of the indictment returned against him, with the depraved indifference murder (Penal Law, § 125.25, subd. 2) of Antonio Gray, one of his accomplices in a robbery of a neighborhood grocery store. The proof was that defendant, Gray, and two unidentified men entered the grocery store. Defendant put his gun to the head of one of the clerks and announced a holdup. One of the two unidentified men held a gun to another clerk. Gray and the other unidentified man each pointed a gun at the owner and a third clerk. Defendant, continuing to hold his gun against the clerk's head, with his free hand reached into the cash register and took some money. Almost simultaneously the grocery store owner shouted, "Call the police". With that gunshots rang out. Defendant climbed the store's counter, all the while shooting in the direction of the owner and one of the clerks. Gray joined in shooting at the owner. According to police testimony at least nine shots were fired. As a result of gunshot wounds received in the melee, the owner, one of the clerks, and Gray died. Defendant and the other two gunmen fled the scene, apparently unscathed. On trial defendant offered an alibi defense--that at the time of the shootings he was with his girlfriend at a bar some distance away.
At the close of the People's case, defense counsel moved for a trial order of dismissal and, when his motion was denied, objected to the submission of the depraved indifference murder count to the jury. No other protest was registered, however, to the court's instructions to the jury with respect to the fifth count. It was and is defense counsel's contention that defendant could not be convicted of depraved indifference murder in the absence of proof that he fired the fatal shot. Although it is accurate to say that a defendant is not necessarily guilty of depraved indifference murder if a coperpetrator is killed in the course of an armed robbery, it is likewise accurate to say that, if the evidence is sufficient to permit the jury to find that a defendant acted "with the mental culpability" required for depraved indifference murder, he may be found guilty of such a charge, on the theory that he was acting in concert, under section 20.00 of...
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