People v. Herrera

• Decision Date: 10 February 2022
• Docket Number: 15093,Ind. No. 2615/16,Case No. 2018-4686
• Citation: 202 A.D.3d 517,162 N.Y.S.3d 61
• Parties: The PEOPLE of the State of New York, Respondent, v. Jean HERRERA, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

202 A.D.3d 517

162 N.Y.S.3d 61

The PEOPLE of the State of New York, Respondent,

v.Jean HERRERA, Defendant-Appellant.

15093

Ind. No. 2615/16

Case No. 2018-4686

Supreme Court, Appellate Division, First Department, New York.

ENTERED February 10, 2022

Robert S. Dean, Center for Appellate Litigation, New York (John Vang of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Alexander Michaels of counsel), for respondent.

Manzanet–Daniels, J.P., Gische, Kern, Mazzarelli, Gesmer, JJ.

Judgment, Supreme Court, New York County (Daniel P. Conviser, J.), rendered June 19, 2018, convicting defendant, after a jury trial, of murder in the second degree (depraved indifference murder), assault in the first degree (two counts), assault in the second degree (two counts), reckless endangerment in the first degree, unlawful fleeing a police officer in the first degree, and aggravated unlicensed operation of a motor vehicle in the second degree, and sentencing him to an aggregate term of 18 years to life, unanimously affirmed.

The verdict with regard to the finding of depraved indifference was based on legally sufficient evidence and was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). Depraved indifference is a culpable mental state and " ‘is best understood as an utter disregard for the value of human life—a willingness to act not because one intends harm, but because one simply doesn't care whether grievous harm results or not’ " ( People v. Feingold, 7 N.Y.3d 288, 296, 819 N.Y.S.2d 691, 852 N.E.2d 1163 [2006], quoting People v. Suarez, 6 N.Y.3d 202, 214, 811 N.Y.S.2d 267, 844 N.E.2d 721 [2005] ). "[C]ases involving a depraved indifference to human life are highly fact-specific and dependent upon the individual defendant's particular mental state—a factor that may be extremely difficult to establish" ( People v. Heidgen, 22 N.Y.3d 259, 276, 980 N.Y.S.2d 320, 3 N.E.3d 657 [2013] ), but it may still be proved circumstantially ( id. at 279, 980 N.Y.S.2d 320, 3 N.E.3d 657 ; Feingold, 7 N.Y.3d at 296, 819 N.Y.S.2d 691, 852 N.E.2d 1163 ).

Here, the evidence sufficiently supports the conclusion reached by the jury that defendant acted with depraved indifference when he crashed his car into an oncoming car, killing one person and injuring two others. While fleeing from the police, defendant drove 14 blocks against oncoming traffic on the West Side Highway, a major roadway, despite openings in the median between the north and southbound lanes, while running several red lights and driving onto the curb and sidewalk. Additionally, defendant did not avail himself of parking lots and driveways on the west side of the Highway, where he could have pulled off to avoid any collision with an oncoming vehicle. Heading north, the Highway merges into, and becomes, the Henry Hudson Parkway at the intersection of 57 ^th Street.

Instead of utilizing the last available opportunity to turn into the north bound lanes, defendant made the decision to continue driving in the wrong direction and entered onto the Parkway. It is unrefuted that the Parkway had no breaks in the median through which he could return to the northbound lanes and that oncoming cars were going even faster there than on the Highway because the speed limit increased from 35 mph to 50 mph. After he got on the Parkway, defendant remained in the lane immediately to the left of the concrete barrier separating the northbound and southbound lanes, made no effort to change lanes or to swerve to avoid oncoming vehicles and made no effort to stop or slow down, despite the fact that he was now on a parkway. He continued driving this way on the Parkway for seven blocks at which time he collided, head-on, with a vehicle driving in the proper direction in the southbound lane. Based on the foregoing, the evidence supports the conclusion that at the time defendant entered the Parkway instead of exiting from the Highway, he had no regard for the risk of death to others (see People v. Heidgen, 22 N.Y.3d at 277, 980 N.Y.S.2d 320, 3 N.E.3d 657 [2013] ["One who engages in what amounts to a high speed game of chicken, with complete disregard for the value of the lives that are thereby endangered, is undoubtedly an individual whose culpability is the equivalent of an intentional murderer"]).

Defendant's reliance on People v. Maldonado, 24 N.Y.3d 48, 993 N.Y.S.2d 680, 18 N.E.3d 391 (2014) is misplaced as that case is distinguishable. In Maldonado, the Court of Appeals found insufficient evidence to support a conviction for depraved indifference murder because the defendant "actively attempt[ed] to avoid hitting other vehicles by swerving, conduct which establishes a lack of depraved indifference" and because defendant's conduct in driving in the wrong direction was "episodic," "brief" and done "in order to pass other cars, not as part of a deadly game" ( id. at 53–54, 993 N.Y.S.2d 680, 18 N.E.3d 391 [...