People v. McManus

• Decision Date: 20 May 1985
• Citation: 489 N.Y.S.2d 561,108 A.D.2d 474
• Parties: The PEOPLE, etc., Respondent, v. Jerry McMANUS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 561

489 N.Y.S.2d 561

108 A.D.2d 474

The PEOPLE, etc., Respondent, v. Jerry McMANUS, Appellant.

Supreme Court, Appellate Division,

Second Department.

May 20, 1985.

William E. Hellerstein, New York City (Valerie Hriciga, New York City, of counsel), for appellant.

William L. Murphy, Dist. Atty., Staten Island (Karen F. McGee and Paul J. Angioletti, Asst. Dist. Attys., Staten Island, of counsel), for respondent.

Before TITONE, J.P., and LAZER, MANGANO and O'CONNOR, JJ.

TITONE, Justice Presiding.

Defendant appeals from a judgment of the Supreme Court, Richmond County, convicting him of "depraved indifference" murder (Penal Law § 125.25), upon a jury verdict, and imposing sentence. The core issue is whether the trial court erred in declining his request to give an instruction that justification constitutes a defense to depraved mind murder. The question is somewhat complicated by the fact that a justification instruction was given on a separate count of the indictment charging intentional murder and the jury exonerated defendant of that charge. We conclude that the trial court's instructions were correct and, finding no merit in defendant's other contentions, affirm the judgment in all respects.

On April 15, 1980, defendant shot and fatally wounded Dennis Hite. The People's witnesses ¹ testified that the victim and one of his cohorts had chased the defendant from a local park area in the New Brighton section of Staten Island. They gave up the chase when they reached defendant's block where they turned around, walked away in the opposite direction and were joined by several other young males. As the group approached a vacant lot, they saw defendant and one of his friends. Defendant, who had a rifle in his hands, yelled "You's want to play around now", and fired, striking Hite in the chest. All the People's witnesses stated that neither Hite nor anyone else in the group was armed and that no one had attacked the defendant or his companion.

In a written statement made to police officers the night of the shooting, defendant claimed that he left his house and went to the vacant lot where a group of five boys was beating one of his friends. Hite and the others then purportedly chased him, Hite firing two shots from a pistol. Defendant ran to his house, grabbed his uncle's rifle, which he did not know was loaded, and went outside to scare off the attackers. When defendant opened the door, Hite fired at him again and, seeing the rifle, ran off. Defendant gave pursuit. The group allegedly halted their flight to administer another beating to defendant's friend who yelled "Shoot, Shoot". Defendant thereupon pulled the trigger.

A videotaped statement was given to the Chief Assistant District Attorney later that evening. Unlike the written statement, on the videotape defendant made no mention of anyone firing any shots at him. A third version of the events was offered by the defendant at trial. He then claimed that after the group had fled from his residence and had come upon his companion, Hite "was sneaking behind the car and then he came from behind the car and fired a pistol at me. Then fired the rifle at him trying to shoot the gun out of his hand".

Charged with two counts of murder in the second degree (Penal Law § 125.25) and criminal possession of a weapon in the fourth degree (Penal Law § 265.01), defendant requested that the jury be instructed on the defense of justification (Penal Law § 35.15). The court told the jury that justification was a defense to the intentional murder count and submitted manslaughter in the first degree as a lesser included offense on the theory that defendant may have acted under the influence of an extreme emotional disturbance. The court declined, however, to instruct the jury that justification was a defense to the depraved mind murder count, explaining to counsel, in response to defendant's exception, "In order for you to have justification, you must have intent. You are admitting that you killed somebody. You did it because you were justified. How can you have a reckless depraved indifference and say you were justified I don't think it applies". ²

The jury acquitted defendant of intentional murder, was unable to reach a verdict on the lesser included manslaughter charge, and convicted defendant of depraved mind murder and criminal possession of a weapon. The court subsequently dismissed the latter as merged in the murder conviction. Defendant appeals claiming, among other things, that the evidence was insufficient to support a conviction for depraved mind murder and that it was error to deny his request to charge justification as a defense to depraved mind murder.

To put the problem before us into focus, it is useful to observe that depraved indifference murder is little more than a modern analogue of the common-law concept of implied malice (see ALI Model Penal Code and Commentary, Part II, § 210.2, pp 13-15, 21-28; Moreland, Law of Homicide pp. 31-41, 213-216; Wechsler & Michael, A Rationale of the Law of Homicide: I, 37 Col.L.Rev. 701, 709-713, 720-722). " 'Such malice is implied * * * when the defendant or his accomplice "For a base, antisocial motive and with a wanton disregard for human life, does an act that involves a high degree of probability that it will result in death" ' " (People v. Caldwell, 36 Cal.3d 210, 216, n. 2, 681 P.2d 274, 277, n. 2, 203 Cal.Rptr. 433, 436, n. 2, quoting People v. Gilbert, 63 Cal.2d 690, 704-705, 408 P.2d 365, 373, 47 Cal.Rptr. 909, which, in turn, quotes People v. Washington, 62 Cal.2d 777, 782, 402 P.2d 130, 134, 44 Cal.Rptr. 442, and People v. Thomas, 41 Cal.2d 470, 480, 261 P.2d 1, 7 see, also, California Jury Instructions, Criminal, § 8.11, 1982 Cum Pocket Part, p 60). ³ Acts embraced within this definition--"the classic example is that of the newly born baby put outside where it almost surely must die unless a stranger discovers it and takes steps to save it" (Clark & Marshall, A Treatise on the Law of Crimes § 10.06, p. 648; see, also, LaFave & Scott, Criminal Law, § 70, p. 543)--could not meet the common law standards for excusable or justifiable homicide (Clark & Marshall, op cit., §§ 7.01-7.03, 10.04; see, generally, Beale, Homicide in Self-Defense, 3 Col.L.Rev. 526; Perkins, Self-Defense Re-Examined, 1 UCLA L Rev 133).

New York long ago abandoned the confusing common-law nomenclature, substituting depraved indifference murder for what would have been implied malice, in part, at common law (see People v. Register, 60 N.Y.2d 270, 276-278, 469 N.Y.S.2d 599, 457 N.E.2d 704; People v. Poplis, 30 N.Y.2d 85, 330 N.Y.S.2d 365, 281 N.E.2d 167; New York State Law Revision Commission, Commission Report to the Legislature, Leg Doc No. 65 pp 536-540; ALI Model Penal Code and Commentary, Part II, § 210.2, pp 22-28; Gegan, A Case of Depraved Mind Murder, 49 St. John's L.Rev. 417). ⁴ Under the present codification, an individual commits depraved mind murder when "circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person" (Penal Law § 125.25) and 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).

There can be little question that defendant's conduct--indiscriminately shooting into a crowd of five persons and causing death--may be punished as depraved mind murder (People v. Gomez, 65 N.Y.2d 9, 489 N.Y.S.2d 156, 478 N.E.2d 156 People v. Fenner, 61 N.Y.2d 971, 475 N.Y.S.2d 276, 463 N.E.2d 617; People v. Register, 60 N.Y.2d 270, 277, 469 N.Y.S.2d 599, 457 N.E.2d 704, supra; LaFave & Scott, Criminal Law, § 70, p. 543). The court correctly instructed the jury that it was required to "the surrounding circumstances of defendant's reckless conduct to determine if his conduct was so senseless, callous and brutal as to show a total disregard for human life" (see People v. Fenner, supra 61 N.Y.2d at 973, 475 N.Y.S.2d 276, 463 N.E.2d 617). The jury's "qualitative judgment" and assessment of the testimony on this question should not be disturbed (People v. Le Grand, 61 A.D.2d 815, 402 N.Y.S.2d 209, lv. denied 44 N.Y.2d 737, 405 N.Y.S.2d 1036, 376 N.E.2d 941, cert. denied 439 U.S. 835, 99 S.Ct. 117, 58 L.Ed.2d 130; see People v. Gomez, supra ).

Defendant argues, however, that by virtue of the statutory definition of recklessness, i.e. the awareness and conscious disregard of a "substantial and unjustifiable" risk, justification is a defense to depraved mind murder and, therefore, he was entitled to the requested jury instruction. We think that this reads too much into the statutory language as there is no correlation between the "unjustifiable" element of recklessness and the justification defense contained in article 35 of the Penal Law, which concerns a more refined concept of self-defense (Penal Law § 35.15).

Whether a risk is "unjustifiable" for depraved indifference murder "varies with * * * two variable factors--the extent of the defendant's knowledge of the surrounding circumstances and the social utility of his conduct" (LaFave & Scott, Criminal Law, § 70, p 542). LaFave and Scott offer a useful hypothetical (p 542): "If speeds through crowded streets, thereby endangering other motorists and pedestrians, in order to rush a passenger to the hospital for an emergency operation, he may not be guilty of murder if he unintentionally kills, though the same conduct done solely for the purpose of experiencing the thrill of fast driving may be enough for murder" (see also, People v. Gomez, supra; People v. Watson, 30 Cal.3d 290, 637 P.2d 279, 179...