People v. France

• Citation: 57 A.D.2d 432,394 N.Y.S.2d 891
• Parties: The PEOPLE of the State of New York, Respondent, v. Earl FRANCE, Defendant-Appellant.
• Decision Date: 02 June 1977
• Court: New York Supreme Court Appellate Division

Page 891

394 N.Y.S.2d 891

57 A.D.2d 432

The PEOPLE of the State of New York, Respondent, v. Earl FRANCE, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

June 2, 1977.

Hugh Anthony Levine, New York City, of counsel (John Nicholas Iannuzzi, New York City, atty.), for defendant-appellant.

Norman W. Barclay, New York City, of counsel (Robert M. Pitler, New York City, with him on the brief, Robert M. Morgenthau, Dist. Atty., New York City), for respondent.

Before KUPFERMAN, J. P., and BIRNS, SILVERMAN and LANE, JJ.

BIRNS, Justice:

The defendant stands convicted of various counts of robbery in the first and second degrees, assault in the first degree, possession of a weapon as a felony, and criminal possession of stolen property. He was convicted also of murder in the second degree (Penal Law, § 125.25(2) (Depraved Mind Murder)) and sentenced as a predicate felon to a term of 25 years to life. He received lesser concurrent terms on each of the other crimes of which he was convicted. With respect to the conviction for murder, he challenges the sufficiency of the evidence against him.

At about 3:00 A.M. on September 25, 1973 the defendant and an associate in a stolen automobile fled from 10th Street Third Avenue where they had robbed a prostitute. After being stopped on Broome Street by an unmarked police car reacting to a broadcast of the robbery, the defendant put his car in motion and speeding north on Lafayette from Broome Street, ignored four red lights while pursued by the police car. At the intersection of Houston and Lafayette Streets, the defendant's automobile collided with a westbound automobile causing the death of the driver of that car and serious physical injury to a passenger therein. There was some evidence that other vehicular traffic and pedestrians were on the street at the time. ¹

We are of the opinion that the trial court was in error in submitting to the jury that count of the indictment charging murder (Penal Law, § 125.25(2) (Depraved Mind Murder)). Section 125.25 provides: "A person is guilty of murder in the second degree when: . . . 2. Under 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."

There can be no doubt that the defendant's conduct was reckless and that such conduct caused the death of another. But it does not follow that because defendant was attempting to escape from capture by police at 3:00 A.M., at high speed in a motor car, and ignored successive traffic signals, these circumstances evinc(ed) a depraved indifference to human life".

Although testimony concerning the condition of the streets and thoroughfares at the time involved and the defendant's rate of speed while driving is sketchy, there is no doubt that the collision at the intersection with its most tragic consequences was fortuitous; it was not as if the defendant, in an effort to elude pursuers, drove his auto into congestion deliberately disregarding other vehicles or pedestrians who happened to block his way.

The case at bar does not resemble the classic cases of depraved mind murder where danger to many was an essential element (See Gegan, A Case of Depraved Mind Murder, 49 St. John's L.Rev. 417). However, such an element is no longer requisite, for recent cases have found this homicide section to have been applied to criminal conduct directed at a single person (People v. Poplis, 30 N.Y.2d 85, 330 N.Y.S.2d 365, 281 N.E.2d 167; People v. Kibbe, 35 N.Y.2d 407, 362 N.Y.S.2d 848, 321 N.E.2d 773).

Nevertheless, the evidence should require, as it did in a hoary precedent, that the act must be "perpetrated with a full consciousness of the probable consequences" (Darry v. People, 10 N.Y. 138, Selden, J., at p. 148) and certainly be one which would support the observation that "the imminently dangerous act, the extreme depravity of mind and the regardlessness of human life properly placed the crime upon the same level as the taking of life by premeditated design" (Darry, supra, Parker, J., at p. 158) (emphasis added).

The observation in Poplis, supra, is significant in the present day application of the murder section under review:

"A person who, with a 'depraved indifference to human life', recklessly engages in conduct which 'creates a grave risk of death to another person' resulting in death, also by included definition 'recklessly causes' the death. But the murder prescription requires more than recklessly causing death which could happen, for example, from gross carelessness in motor vehicle operation. (Emphasis added)

"The murder definition requires conduct with 'depraved indifference' to 'human life', plus recklessness. This is conduct of graver culpability, and it is the kind which has been rather well understood at common law to involve something more serious than mere recklessness alone which has had an incidental tragic result." (Poplis, supra, 30 N.Y.2d at p. 88, 330 N.Y.S.2d at p. 366, 281 N.E.2d at p. 168.)

Such condemned behavior is required to be "extremely dangerous and fatal conduct performed without specific homicidal intent but with a depraved kind of wantonness: for example, shooting into a crowd, placing a time bomb in a public place, or opening the door of the lions' cage in the zoo (see People v. Jernatowski, 1924, 238 N.Y. 188, 144 N.E. 497; Darry v. People, supra )." (Practice Commentaries by Arnold D. Hechtman, McKinney's Cons.Laws of N.Y., Book 39, Penal Law, § 125.25) and not merely carelessness or recklessness in the operation of an automobile (cf., People v. Haney, 30 N.Y.2d 328, 333 N.Y.S.2d 403, 284 N.E.2d 564). Compared to the crime of criminally negligent homicide (Penal Law, § 125.10), where the existence of criminal negligence is the critical element, the crime of manslaughter in the second degree "with its greater culpability requirement is, of course, applicable to very aggravated cases and can be employed as a basis for prosecution in such instances" (Practice Commentaries by Arnold D. Hechtman, McKinney's Cons.Laws...