People v. Jones

• Decision Date: 09 November 2012
• Citation: 953 N.Y.S.2d 416,2012 N.Y. Slip Op. 07439,100 A.D.3d 1362
• Parties: The PEOPLE of the State of New York, Respondent, v. Alan L. JONES, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

100 A.D.3d 1362
953 N.Y.S.2d 416
2012 N.Y. Slip Op. 07439

The PEOPLE of the State of New York, Respondent,
v.
Alan L. JONES, Defendant–Appellant.

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

Nov. 9, 2012.

[953 N.Y.S.2d 418]

D.J. & J.A. Cirando, Esqs., Syracuse (John A. Cirando of Counsel), for Defendant–Appellant.

Gregory S. Oakes, District Attorney, Oswego, for Respondent.

PRESENT: FAHEY, J.P., PERADOTTO, LINDLEY, AND SCONIERS, JJ.

MEMORANDUM:

[100 A.D.3d 1363]On appeal from a judgment convicting him upon a jury verdict of murder in the second degree (Penal Law § 125.25[2] [depraved indifference murder] ), defendant contends, inter alia, that the evidence is legally insufficient to support the conviction. We agree.

Turning first to defendant's legal sufficiency contention, we conclude that, contrary to the People's assertion, this issue is preserved for our review because the Trial Judge “plainly was aware of, and expressly decided, the question raised on appeal” concerning whether the evidence is legally sufficient to support the conviction ( People v. Eduardo, 11 N.Y.3d 484, 493, 872 N.Y.S.2d 395, 900 N.E.2d 946;seeCPL 470.05[2]; People v. Prado, 4 N.Y.3d 725, 726, 790 N.Y.S.2d 418, 823 N.E.2d 824,rearg. denied4 N.Y.3d 795, 795 N.Y.S.2d 170, 828 N.E.2d 86). With regard to the merits, Penal Law § 125.25(2) provides that “[a] person is guilty of murder in the second degree when[,] ... [u]nder circumstances evincing a depraved indifference to human life, he [or she] recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.” That crime “ ‘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). “The culpable mental state, contrasting it from the intent to take one's life, is such that one is ‘recklessly indifferent, depravedly so, to whether’ the injury to or death of another occurs” ( People v. Bussey, 19 N.Y.3d 231, 236, 947 N.Y.S.2d 381, 970 N.E.2d 404, quoting People v. Gonzalez, 1 N.Y.3d 464, 468, 775 N.Y.S.2d 224, 807 N.E.2d 273).

It is well settled “ ‘that, except in rare and extraordinary circumstances, ... one person's attack on another, no matter how violent or how great the risk of harm it creates, does not rise to the level of depravity and indifference to life contemplated by the statutes defining crimes committed under circumstances evincing a depraved indifference to human life’ ” ( People v. Boutin, 81 A.D.3d 1399, 1400, 916 N.Y.S.2d 708,lv. denied17 N.Y.3d 792, 929 N.Y.S.2d 100, 952 N.E.2d 1095;see People v. Taylor, 15 N.Y.3d 518, 522, 914 N.Y.S.2d 76, 939 N.E.2d 1206;People v. Suarez, 6 N.Y.3d 202, 210–211, 811 N.Y.S.2d 267, 844 N.E.2d 721). Indeed, “where a defendant's conduct endangers only a single person, to sustain a charge of depraved indifference there must be proof of ‘wanton cruelty, brutality or callousness directed against a particularly vulnerable victim, combined with utter indifference to the life or safety [100 A.D.3d 1364]of the helpless target of the perpetrator's inexcusable acts' ”

[953 N.Y.S.2d 419]

( People v. Coon, 34 A.D.3d 869, 870, 823 N.Y.S.2d 566, quoting Suarez, 6 N.Y.3d at 213, 811 N.Y.S.2d 267, 844 N.E.2d 721;see Boutin, 81 A.D.3d at 1400, 916 N.Y.S.2d 708). The Court of Appeals has explained that there are two recurring “fact patterns in which a one-on-one killing could result in a depraved indifference conviction” ( Taylor, 15 N.Y.3d at 522, 914 N.Y.S.2d 76, 939 N.E.2d 1206). “The first is ‘when the defendant intends neither to seriously injure, nor to kill, but nevertheless abandons a helpless and vulnerable victim in circumstances where the victim is highly likely to die’ ” ( id., quoting Suarez, 6 N.Y.3d at 212, 811 N.Y.S.2d 267, 844 N.E.2d 721). “The second is when the ‘defendant—acting with a conscious objective not to kill but to harm—engages in torture or a brutal, prolonged and ultimately fatal course of conduct against a particularly vulnerable victim’ ” ( id. at 523, 811 N.Y.S.2d 267, 844 N.E.2d 721, quoting Suarez, 6 N.Y.3d at 212, 811 N.Y.S.2d 267, 844 N.E.2d 721).

The facts of this case do not fit within either of the aforementioned fact patterns. The first fact pattern is inapposite here inasmuch as the evidence at trial established that defendant did not abandon the victim and, instead, demonstrated that defendant called 911 regarding the victim's asphyxiation, administered CPR and was present at the scene when the authorities arrived. The second fact pattern is likewise inapposite to this case inasmuch as the evidence did not establish that defendant “engage[d] in torture or a brutal, prolonged and ultimately fatal course of conduct against a particularly vulnerable victim” ( id. [internal quotation marks omitted] ). Indeed, a treating emergency medical technician (EMT) testified that he conducted a “head to toe” examination of the victim, but found no injuries of note other than marks to her neck. Another EMT and a flight paramedic each testified that they did not see any injuries other than the marks on the victim's neck. Moreover, although the Medical Examiner testified that she noticed bruising on the victim's left forearm, left knee and left leg, she opined that those injuries “occurred at or about the time [the victim] was found unresponsive” and further testified that the victim could not have been strangled for a period of more than five minutes. Based on the above, we conclude that the conviction of depraved indifference murder is not supported by legally sufficient evidence ( see id.; see also Bussey, 19 N.Y.3d at 236, 947 N.Y.S.2d 381, 970 N.E.2d 404;see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

We now turn to the issue of the...