People v. Russell
| Citation | 693 N.E.2d 193,670 N.Y.S.2d 166,91 N.Y.2d 280 |
| Parties | , 693 N.E.2d 193, 1998 N.Y. Slip Op. 1318 The PEOPLE of the State of New York, Respondent, v. Jermaine RUSSELL, Appellant. The PEOPLE of the State of New York, Respondent, v. Khary BEKKA, Appellant. The PEOPLE of the State of New York, Respondent, v. Shamel BURROUGHS, Appellant. |
| Decision Date | 11 February 1998 |
| Court | New York Court of Appeals |
Shortly before noon on December 17, 1992, Shamel Burroughs engaged in a gun battle with Jermaine Russell and Khary Bekka on Centre Mall of the Red Hook Housing Project in Brooklyn. During the course of the battle, Patrick Daly, a public school principal looking for a child who had left school, was fatally wounded by a single stray nine millimeter bullet that struck him in the chest. Burroughs, Bekka and Russell--defendants on this appeal--were all charged with second degree murder (Penal Law § 125.25[1], [2] ).
Two separate juries, one for Burroughs and another for Russell and Bekka, were impanelled contemporaneously and heard the evidence presented at trial. Although ballistics tests were inconclusive in determining which defendant actually fired the bullet that killed Daly, the theory of the prosecution was that each of them acted with the mental culpability required for commission of the crime, and that each "intentionally aided" the defendant who fired the fatal shot (Penal Law § 20.00). Both juries convicted defendants of second degree, depraved indifference murder (Penal Law § 125.25[2] ). *
On appeal, each defendant challenges the sufficiency of the evidence. Because the evidence, viewed in the light most favorable to the prosecution, could have led a rational trier of fact to find, beyond a reasonable doubt, that each defendant was guilty of depraved indifference murder as charged, we affirm the order of the Appellate Division sustaining all three convictions.
A depraved indifference murder conviction requires proof that defendant, under circumstances evincing a depraved indifference to human life, recklessly engaged in conduct creating a grave risk of death to another person, and thereby caused the death of another person (Penal Law § 125.25[2] ). Reckless conduct requires awareness and conscious disregard of a substantial and unjustifiable risk that such result will occur or that such circumstance exists (Penal Law § 15.05[3] ). "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" (id.). To constitute "depraved indifference," conduct must be " 'so wanton, so deficient in a moral sense of concern, so devoid of regard of the life or lives of others, and so blameworthy as to warrant the same criminal liability as that which the law imposes upon a person who intentionally causes the death of another' " (People v. Fenner, 61 N.Y.2d 971, 973, 475 N.Y.S.2d 276, 463 N.E.2d 617; see also, People v. Register, 60 N.Y.2d 270, 469 N.Y.S.2d 599, 457 N.E.2d 704, cert. denied 466 U.S. 953, 104 S.Ct. 2159, 80 L.Ed.2d 544).
Although defendants underscore that only one bullet killed Patrick Daly and it is uncertain which of them fired that bullet, the prosecution was not required to prove which defendant fired the fatal shot when the evidence was sufficient to establish that each defendant acted with the mental culpability required for the commission of depraved indifference murder, and each defendant "intentionally aided" the defendant who fired the fatal shot (Penal Law § 20.00; see also, People v. Brathwaite, 63 N.Y.2d 839, 841-842, 482 N.Y.S.2d 253, 472 N.E.2d 29). Defendants urge, however, that the evidence adduced at trial did not support a finding that they--as adversaries in a deadly gun battle--shared the "community of purpose" necessary for accomplice liability (see, People v. Allah, 71 N.Y.2d 830, 527 N.Y.S.2d 731, 522 N.E.2d 1029). We disagree. The fact that defendants set out to injure or kill one another does not rationally preclude a finding that they intentionally aided each other to engage in the mutual combat that caused Daly's death.
People v. Abbott, 84 A.D.2d 11, 445 N.Y.S.2d 344, provides an apt illustration. That case involved two defendants--Abbott and Moon--who were engaged in a "drag race" on a residential street when Abbott lost control and smashed into another automobile, killing the driver and two passengers. Both defendants were convicted of criminally negligent homicide, but Moon asserted that he was not responsible for Abbott's actions and that his conviction should be set aside. Rejecting this argument, the court found that, although Moon did not strike the victim's car and was Abbott's adversary in a competitive race, he intentionally participated with Abbott in an inherently dangerous and unlawful activity and therefore shared Abbott's culpability. Moon's "conduct made the race...
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