People v. Feingold

• Citation: 852 N.E.2d 1163,7 N.Y.3d 288
• Parties: The PEOPLE of the State of New York, Respondent, v. Larry FEINGOLD, Appellant.
• Decision Date: 05 July 2006
• Court: New York Court of Appeals

Page 1163

852 N.E.2d 1163

7 N.Y.3d 288

The PEOPLE of the State of New York, Respondent, v. Larry FEINGOLD, Appellant.

Court of Appeals of New York.

July 5, 2006.

Rochman Platzer Fallick Sternheim Luca & Pearl, LLP, New York City (Jillian S. Harrington, Barry M. Fallick and Irwin Rochman of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York City (Patricia Curran and Michael S. Morgan of counsel), for respondent.

OPINION OF THE COURT

G.B. SMITH, J.

Defendant was convicted, after a nonjury trial, of reckless endangerment in the first degree in violation of Penal Law § 120.25. Because the verdict, as enunciated by the trial judge and affirmed by the Appellate Division, does not conform to this Court's precedents, we modify by reducing the conviction to reckless endangerment in the second degree.

Facts

In February 2003 the 52-year-old defendant, an attorney working as an administrative law judge, attempted suicide in his 12th floor Manhattan apartment. Sealing the apartment door with tape, he blew out the pilot lights of his stove, turned on the gas, took tranquilizers and fell asleep in front of the oven, expecting the gas to kill him. Several hours later, a spark, apparently from the refrigerator compressor, ignited the gas, causing an explosion that wrecked the walls of his apartment and heavily damaged a number of neighboring apartments.

No one else was seriously injured and defendant himself survived. He was charged with first-degree reckless endangerment pursuant to Penal Law § 120.25, which provides that a person violates the statute "when, under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person."¹

Supreme Court found, in a non-jury trial, that defendant's state of mind was not one of depraved indifference but nevertheless, relying on People v. Register, 60 N.Y.2d 270, 469 N.Y.S.2d 599, 457 N.E.2d 704 [1983], found him guilty and sentenced him to five years' probation. The Appellate Division affirmed, and a Judge of this Court granted defendant leave to appeal.

Discussion

The People first contend that defendant's argument that depraved indifference is a mens rea is unpreserved because he did not plainly present it to the trial court. The trial judge's decision, however, demonstrates that he specifically confronted and resolved this issue. Under these circumstances, we conclude that the preservation was adequate (People v. Prado, 4 N.Y.3d 725, 790 N.Y.S.2d 418, 823 N.E.2d 824 [2004]).

To begin with, there is no dispute that the term "depraved indifference" has the same meaning in both the depraved indifference murder statute and the reckless endangerment statute. Defendant wishes this Court to say that the trial court should have viewed defendant's conduct with a subjective eye where the defendant must "evince a wicked and mischievous disregard (i.e., utter indifference) for the near certain consequences of his ... irresponsible act." Defendant argues that under this test, depraved indifference was not established — and indeed ruled out by the factfinder — and therefore his conviction should be reversed.

The People rely on Register, asserting that depraved indifference refers not to the mens rea or the actus reus of the crime but to the "factual setting in which the risk creating conduct must occur." In People v. Register, after a night of drinking, defendant shot a man fatally for no explained reason. Defendant was acquitted of intentional murder but convicted of depraved indifference murder. In a 4-3 decision, a majority of this Court concluded that the Legislature did not intend that a mens rea element beyond mere recklessness be included in the definition of depraved indifference murder. "The concept of depraved indifference was retained in the new statute [adopted in 1965] not to function as a mens rea element, but to objectively define the circumstances which must exist to elevate a homicide from manslaughter to murder" (People v. Register, 60 N.Y.2d at 278, 469 N.Y.S.2d 599, 457 N.E.2d 704). The three dissenters, however, contended that the predecessor statutes to Penal Law § 125.25(2) defined depraved indifference as a mens rea and that depraved mind and depraved indifference "connote a culpable mental state" (60 N.Y.2d at 282, 469 N.Y.S.2d 599, 457 N.E.2d 704).

In People v. Sanchez, 98 N.Y.2d 373, 748 N.Y.S.2d 312, 777 N.E.2d 204 [2002], the jury found the defendant not guilty of intentional murder but guilty of depraved indifference murder. The deceased and the defendant had previously been friends, and the shooting occurred after an argument erupted on the day of the shooting. Relying on People v. Register, the majority of a divided court concluded that although the gun had been fired at point-blank range, it was fired at an angle, the shooting was instantaneous and impulsive, and the jury could have concluded that "defendant's homicidal level of mental culpability was reckless rather than intentional" (98 N.Y.2d at 378, 748 N.Y.S.2d 312, 777 N.E.2d 204). In dissent, Judge G.B. Smith stated, "To uphold the conviction of depraved indifference murder in this case is to authorize the substitution of depraved indifference murder for intentional murder at any time that a person shoots and kills another" (98 N.Y2d at 393, 748 N.Y.S.2d 312, 777 N.E.2d 204). Also in dissent, Judge Rosenblatt stated that "by holding the facts at hand sufficient to establish depraved indifference murder, the majority leaves no conceivable circumstances under which a charge of intentional murder will not be amenable to a conviction for depraved indifference murder" (98 N.Y.2d at 394, 748 N.Y.S.2d 312, 777 N.E.2d 204). Judge Rosenblatt added:

"Register dealt chiefly with the defense of intoxication, but ironically, the case has served as the fulcrum for what has become a steadily growing prosecutorial practice of charging defendants with depraved indifference murder as a companion count to intentional murder. The Register majority brushed aside the dissenters' prediction that the decision would `result in wholesale depraved mind murder prosecutions for what are essentially intentional murders' .... That prediction proved prescient, however, as revealed by the enormous growth in depraved indifference murder companion counts post-Register" (98 N.Y.2d at 398, 748 N.Y.S.2d 312, 777 N.E.2d 204).

After Register and Sanchez, and beginning in 2003, a number of decisions by this Court have pointed the law in a different direction. In People v. Hafeez, 100 N.Y.2d 253, 762 N.Y.S.2d 572, 792 N.E.2d 1060 [2003], after a jury found defendant not guilty of intentional murder but guilty of depraved indifference murder, the Appellate Division held that the evidence was insufficient for depraved indifference murder and this Court agreed. The evidence was that months after an unsuccessful confrontation with the deceased, the defendant and co-defendant lay in wait for the deceased, and the co-defendant stabbed him to death with a knife. Defendant was convicted of depraved indifference murder under an accomplice liability theory. We stated that:

"[t]o meet their burden for depraved indifference murder, the People must show that defendant's acts were `imminently dangerous and presented a very high risk of death to others' .... Here the actions of both defendants were focused on first isolating, and then intentionally injuring, the victim. From this record there exists no valid line of reasoning that could support a jury's conclusion that defendant possessed the mental culpability required for depraved indifference murder" (100 N.Y.2d at 259, 762 N.Y.S.2d 572, 792 N.E.2d 1060).

In a concurrence, Judge Rosenblatt said that "the Court is limiting Sanchez by properly rejecting the incongruous notion that an intentional killing can reflect depraved indifference," and indicated that "the critical element in depraved indifference murder is not recklessness, but depraved indifference" (100 N.Y.2d at 260, 762 N.Y.S.2d 572, 792 N.E.2d 1060).

In People v. Gonzalez, 1 N.Y.3d 464, 775 N.Y.S.2d 224, 807 N.E.2d 273 [2004], after a jury found the defendant not guilty of intentional murder but guilty of depraved indifference murder, this Court determined that a defendant could not be convicted of depraved indifference murder where a defendant first shot the deceased in the chest from a distance of six to seven feet, then shot him in the head as he fell to the floor and shot him eight more times as he lay on the floor. We concluded that the evidence indicated only an intentional murder. We stated:

"Depraved indifference murder differs from intentional murder in that it results not from a specific, conscious intent to cause death, but from an indifference to or disregard of the risks attending defendant's conduct ...

"Depraved indifference murder does not mean an extremely, even heinously, intentional killing. Rather, it 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" (1 N.Y.3d at 467-468, 775 N.Y.S.2d 224, 807 N.E.2d 273).

In People v. Payne, 3 N.Y.3d 266, 786 N.Y.S.2d 116, 819 N.E.2d 634 [2004], after a jury had acquitted the defendant of intentional murder but convicted him of depraved indifference murder, this Court held that defendant could not be found guilty of depraved indifference murder. There, a 20-year friendship between the defendant and the deceased was strained after the deceased was arrested and accused of sexually abusing an eight-year-old playmate of defendant's daughter. The defendant went to the home of the deceased and shot him in the chest with a 12-gauge "elephant" shotgun. We stated, "As the drafters of the Penal Law put it, depraved indifference murder is `extremely dangerous and fatal conduct performed without specific homicidal intent but with a depraved kind of...