People v. Sanchez

Decision Date09 July 2002
Citation748 N.Y.S.2d 312,98 N.Y.2d 373,777 N.E.2d 204
CourtNew York Court of Appeals Court of Appeals

Reyna E. Marder, New York City, and Lynn W.L. Fahey for appellant.

Charles J. Hynes, District Attorney, Brooklyn (Solomon Neubort and Leonard Joblove of counsel), for respondent.

Chief Judge KAYE and Judges WESLEY and GRAFFEO concur with Judge LEVINE; Judges SMITH and ROSENBLATT dissent and vote to reverse, reduce the conviction to manslaughter in the second degree and remit for resentencing in separate dissenting opinions; Judge CIPARICK dissents and votes to reverse and dismiss the indictment in another opinion.



Defendant was convicted, after a jury trial, of "depraved indifference" murder (Penal Law § 125.25 [2]) for the shooting death of Timothy Range. The sole issue before us is whether the evidence was legally sufficient to support the verdict.

Range and defendant were the boyfriends of two sisters, Monon Washington and Candace Johnson. Range and Monon were together for 10 years, and their union had produced two children. The relationship between Candace and defendant existed for about a year. The occasion for their being together on the day of the fatal shooting was a party celebrating the third birthday of Candace's daughter at the family's apartment in Brooklyn, where Candace, her daughter, mother and brother Terrence resided. Range arrived at the party in the late afternoon or early evening, and defendant followed at about 9:30 P.M.

The People's case rested upon the testimony of Monon Washington and her mother, Rose Liburd. Monon testified that she and Range had a cordial relationship with Candace and defendant, and that Range and defendant got along and used to lift weights together. That evening, however, harsh words were exchanged in a hallway near the foyer entrance of the apartment when Range implied that defendant was unfaithful to Candace. From an adjoining room, Monon heard their voices raised and the sound of a scuffle, then Range telling defendant to step outside. She summoned Rose Liburd, who was the only actual eyewitness to the incident. Liburd first observed defendant walking through the entrance doorway from the hallway where her two grandchildren were playing in the foyer, away from Range, who was behind the partially opened door. Then she saw defendant abruptly turn around, fire a gun pointed at Range's chest and flee. The entire incident was over in a matter of seconds. Range collapsed after phoning 911 from the kitchen. He was taken by ambulance to a hospital where he expired.

The forensic evidence was that the bullet entered Range's upper left chest, then traversed downward from front to back and left to right. It perforated Range's left lung causing the extensive internal bleeding which ultimately resulted in his death. Gunpowder residue from around the holes in Range's shirt and undershirt corresponding to the chest entrance wound indicated that the gun was fired not more than 12-18 inches from his chest.

Defendant testified that, during the confrontation described by the other witnesses, Range pulled a gun, they grappled for it and it accidentally discharged into Range's chest.

The indictment charged defendant with one count each of intentional murder (Penal Law § 125.25 [1]) and depraved indifference murder, and various weapons possession offenses. As agreed to by the defense, the court charged manslaughter in the first and second degrees as lesser-included offenses. The jury was instructed to consider no additional homicide charge in the event that it found defendant guilty of one of the murder counts. Defendant was acquitted of intentional murder but convicted of depraved indifference murder and criminal possession of a weapon in the second degree. The Appellate Division affirmed defendant's conviction.


Under Penal Law § 125.25 (2), a person commits 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." Defendant's challenge to the sufficiency of the evidence to sustain his conviction of depraved indifference murder is twofold. First, he argues that the People's proof was consistent only with an intentional killing and, thus, that there was no reasonable view of the evidence under which he could have been found not guilty of intentional murder and guilty of causing Range's death recklessly—the culpable mental state required under Penal Law § 125.25 (2). Second, defendant contends that the record is devoid of evidence of "circumstances evincing a depraved indifference to human life" to establish that requirement of murder under Penal Law § 125.25 (2). We disagree with both contentions, and find the evidence sufficient to sustain defendant's conviction of depraved indifference murder.

Viewing the evidence in the light most favorable to the People, as we must, a rational jury could harbor a reasonable doubt that the homicide of Range was intentional—i.e., that defendant's "conscious objective [was] to cause [Range's death]" (Penal Law § 15.05 [1]). The two men were friends, had engaged in activities together and socialized because of their intimate relationships with the sisters. The shooting itself appeared to have been sudden, spontaneous and not well-designed to cause imminent death. Rose Liburd testified to first seeing defendant leaving Range's presence in the hallway, then instantly reversing direction and firing the gun from behind the partly closed door separating the hallway from the entrance foyer. The victim stood behind the door.

"A: Poppy [defendant] walked out and Tim [Range] was just standing there, and no sooner than he walked out he turned right back around and came in and drew the gun. * * *
"A: His arm came around the door. When he stepped back in, his arm came around the door and he pulled the trigger. * * *
"A: He stepped off the step from the hallway into the foyer.
"Q: When you say off the step, do you mean there is a step there?
"A: Yes, there is a step right there. * * *
"A: He stepped off this step and he turned right back around and stepped back up and came with his arm through the door and shot him."

Although the gun was discharged at point-blank range, the bullet only struck Range in his upper left chest. The trajectory of the bullet through Range's body indicated that the gun was fired at an angle toward Range, a fact consistent with Rose Liburd's description of defendant's movements and Range's position behind the door. The jury may also have taken into account the preexisting good relations between defendant and Range, and concluded that this was an instantaneous, impulsive shooting—perhaps to disable or frighten Range, rather than to kill him. Thus, a jury reasonably could have found that defendant's homicidal level of mental culpability was reckless rather than intentional.

It is noteworthy that defendant agreed that the court would charge manslaughter in the second degree as a lesser-included offense—in effect conceding that there was a "reasonable view of the evidence which would support a finding that the defendant committed [reckless homicide] but did not commit [intentional murder]" (CPL 300.50 [1]). Had the jury convicted defendant of the reckless homicide of manslaughter in the second degree, he would have been precluded from making the argument he makes here, that the People's proof was only consistent with intentional murder (see id.; People v Borst, 232 AD2d 727, 728

[3d Dept 1996], lv denied 89 NY2d 940 [1997]; see also People v Ford, 62 NY2d 275, 283 [1984]).

Alternatively, defendant argues, and one of our dissenting colleagues agrees, that there was no reasonable view of the evidence to support a finding that defendant acted under circumstances evincing a depraved indifference to human life. We are unpersuaded. To the contrary, accepting the jury's determination that the killing of Range was not intentional (see supra), defendant's shooting into the victim's torso at point-blank range presented such a transcendent risk of causing his death that it readily meets the level of manifested depravity needed to establish murder under Penal Law § 125.25 (2). Here, once it rejected intentional murder, the jury (which concededly was properly instructed) could reasonably conclude that defendant's conduct was so manifestly destined to result in Range's death as to deserve the same societal condemnation as purposeful homicide (see People v Register, 60 NY2d 270, 274 [1983],

cert denied 466 US 953 [1984]; 2 Encyclopedia of Crime and Justice, at 858 [1983] [in "general, the distinguishing feature of the (modern definitions of murder) is an intent to kill or a disregard of so plain a risk of death to another that it is treated as the equivalent of an intent to kill"] [emphasis supplied]).

Judge Rosenblatt concludes, however, that even the highest level of risk from the perpetrator's conduct—making death all but inevitable—would be insufficient alone, because the "unchanging core requirement" of depraved indifference murder is proof of an additional mens rea element to recklessness, that is, the defendant's "uncommonly evil and morally perverse frame of mind" (Rosenblatt, J., dissenting, 98 NY2d at 396). Requiring not only extreme risk but also an unusually evil mental state is necessary, Judge Rosenblatt says, in order to prevent the merger of intentional and depraved indifference murders (see Rosenblatt, J., dissenting, 98 NY2d at 403-404).

Such a requirement is not consistent with our precedents in construing and applying the lead-in phrase "under circumstances evincing a depraved indifference to human life" in the definition of reckless murder under the revised Penal Law of...

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