People v. Gonzalez

• Decision Date: 25 March 2004
• Citation: 1 N.Y.3d 464,775 N.Y.S.2d 224,807 N.E.2d 273
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. WALTER GONZALEZ, Respondent.
• Court: New York Court of Appeals Court of Appeals

1 N.Y.3d 464

807 N.E.2d 273

775 N.Y.S.2d 224

THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. WALTER GONZALEZ, Respondent.

Court of Appeals of the State of New York.

Argued February 19, 2004.

Decided March 25, 2004.

Howard R. Relin, District Attorney, Rochester (Wendy Evans Lehmann of counsel), for appellant.

Edward J. Nowak, Public Defender, Rochester (Timothy P. Donaher of counsel), for respondent.

Judges G.B. SMITH, CIPARICK, ROSENBLATT, GRAFFEO, READ and R.S. SMITH concur.

OPINION OF THE COURT

Chief Judge KAYE.

On January 25, 2000, defendant entered a Rochester barber shop and whispered something to another person in the shop. Although both left quickly, defendant soon returned, kicked in the door, stepped inside, pulled a gun from his waistband and shot the victim in the chest from a distance of six to seven feet. As the victim fell to the floor, defendant fired again, shooting him in the head. Defendant then leaned over the prone body and fired eight more shots into the victim's back and head. Defendant waved the gun at the only eyewitness—the barber—warned him not to say anything and walked out the door. Medical testimony established that defendant shot the victim once in the chest, once in the face from 6 to 18 inches away, six times in the back of the head from approximately six inches away, and twice in the back. Any one of the shots could have been fatal.

After his arrest, defendant made a written statement in which he claimed that he had been afraid of the victim, who had repeatedly threatened him because the victim's niece had accused him of raping her. Defendant said that he became tense and panicked when he saw the victim in the barber shop. Defendant further stated that he had been carrying a gun for protection, but had "blanked out" as a result of fear and could not recall the shooting. The next day, he "couldn't believe what had happened." Later, on the way to booking, a police officer asked him, "Well, if you had blacked out, why are you having these nightmares? ... Could you be having these nightmares because you shot him?" Defendant replied, "Of course I shot him."

Defendant was indicted for both intentional and depraved indifference murder, as well as for criminal possession of a weapon in the second and third degrees. At the conclusion of the People's proof, defendant moved for a trial order of dismissal, arguing that the evidence was legally insufficient to establish his guilt of depraved indifference, as opposed to intentional, murder. Supreme Court denied the motion and submitted both counts to the jury in the alternative. The jury acquitted defendant of intentional murder but convicted him of depraved indifference murder and two counts of criminal possession of a weapon. The Appellate Division, with one Justice dissenting, reversed the murder conviction, concluding that the evidence was legally insufficient to establish depraved indifference, and affirmed the weapon possession convictions, for which defendant is serving 15 years in prison. We now affirm.

Discussion

A defendant is guilty of depraved indifference 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" (Penal Law § 125.25 [2]). "A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation" (Penal Law § 15.05 [3]).

As the Appellate Division correctly concluded, in this case "defendant was guilty of an intentional shooting or no other" (People v Wall, 29 NY2d 863, 864 [1971]). A defendant acts intentionally with respect to a result "when his conscious objective is to cause such result" (Penal Law § 15.05 [1]). The only reasonable view of the evidence here was that defendant intentionally killed the victim by aiming a gun directly at him and shooting him 10 times at close range, even after he had fallen to the ground.

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 is exemplified by a defendant—unconcerned with the consequences—who fires into a crowd (see e.g. People v Jernatowski, 238 NY 188 [1924]); drives an automobile down a crowded sidewalk at high speed (see People v Gomez, 65 NY2d 9 [1985]

); shoots a partially loaded gun at a person's chest during a game of Russian roulette (see People v Roe, 74 NY2d 20 [1989]); abandons a helplessly intoxicated person on a snowy highway at night (see People v Kibbe, 35 NY2d 407 [1974]); or repeatedly beats a young child over a period of several days (see People v Poplis, 30 NY2d 85 [1972]).

When a defendant is in that sense indifferent to whether death will likely result from his or her conduct—including with respect to a single victim—depraved indifference may be manifest. But where, as here, a defendant's conduct is specifically designed to cause the death of the victim, it simply cannot be said that the defendant is indifferent to the consequences of his or her conduct.

The prosecution's speculative argument—that the jury may have concluded that defendant recklessly fired the first shot spontaneously or impulsively and then decided to intentionally shoot nine more times—is unsupported by any reasonable view of the evidence and thus no rational jury could have accepted it. "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" (People v Hafeez, 100 NY2d 253, 259 [2003]).

The People also maintain that the evidence was sufficient to support a conclusion that defendant acted recklessly by consciously disregarding the risk that if he came across someone he intended to shoot while carrying a gun, he might intentionally shoot that person, or that if he did, that person would die. But a person cannot act both intentionally and recklessly with respect to the same result. "The act is either intended or not intended; it cannot simultaneously be both" (...