People v. Sanchez

• Decision Date: 17 June 2010
• Citation: 76 A.D.3d 122,904 N.Y.S.2d 24
• Parties: The PEOPLE of the State of New York, Respondent, v. Steven SANCHEZ, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

904 N.Y.S.2d 24

76 A.D.3d 122

The PEOPLE of the State of New York, Respondent,

v.Steven SANCHEZ, Defendant-Appellant.

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

June 17, 2010.

Richard M. Greenberg, Office of the Appellate Defender, New York (Matthew L. Mazur and Rosemary Herbert of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (Justin J. Braun and Peter D. Coddington of counsel), for respondent.

PETER TOM, J.P., JOHN W. SWEENY, JR., KARLA MOSKOWITZ, ROLANDO T. ACOSTA, SHEILA ABDUS-SALAAM, JJ.

TOM, J.P.

Defendant, who was found guilty of one count of depraved indifference murder, appeals from the denial of his motion to vacate the judgment of conviction in which he alleged that his trial counsel, Lynne Stewart ¹ failed to provide him with effective assistance, in violation of his constitutional rights ( CPL 440.10[1][h] ). A Justice of this Court granted leave to appeal ( CPL 460.15), and we now affirm. The motion presumes prescience as the standardof effective assistance of counsel, which far exceeds the constitutional requirement to afford a defendant with meaningful representation "viewed in totality and as of the time of the representation" ( People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ).

The victim, Jason Maldonado, was being driven home after spending the night at various clubs. The driver, Gregory Bright, agreed to give a ride to two women, one of whom, Jessica Herrera, was defendant's girlfriend of two years. She had promised to go to defendant's house earlier that evening, but instead spent the entire night with her girlfriend, the fourth occupant of the car, first at a night club in Manhattan and then at a friend's apartment. Defendant conceded that he was "very, very upset" with Herrera and had called her a number of times during the night, once while she was in the car. Defendant took the "biggest knife" he could find in his mother's kitchen, put it inhis pocket, and went down to wait for Herrera at a street corner. When Herrera arrived in the vicinity of defendant's home and got out of the vehicle, defendant came over and pushed or slapped her in the face. As Maldonado was closing the car door, defendant kicked it shut, injuring Maldonado's arm. Bright testified that as Maldonado emerged from the car and before he could step away from the vehicle, he "sat back," and asked to be taken to the hospital because he had been stabbed. Bright then watched as Maldonado pulled a knife from the left side of his abdomen and could see his intestines protruding through the wound. Maldonado later passed out. The emergency medical technician at Lincoln Hospital saw Maldonado upon arrival bleeding from the abdominal area, with two feet of his large intestine protruding from his abdomen. The victim later died of hemorrhagic shock as the result of perforation of major blood arteries. The fatal stab wound was "V-shaped," and as explained by the medical examiner was caused either by the victim twisting and turning as the knife entered his body, or by the perpetrator twisting the knife as he plunged it into the victim. The blade penetrated five to six inches into the abdominal cavity.

Defendant testified that Maldonado and one other person (presumably Bright) were hitting him, that he had not intended to stab Maldonado with the knife but had "waved it around," contending that Maldonado was stabbed as he swung at defendant and came into contact with the blade. Defendant testified that he took the knife because he was "scared" to go outside.

Defendant was charged with two counts of murder in the second degree under a so-called "dual-count indictment" alleging both intentional and depraved indifference murder ( see People v. Feingold, 7 N.Y.3d 288, 291, 819 N.Y.S.2d 691, 852 N.E.2d 1163 [2006] ), as well as manslaughter in the first degree and criminal possession of a weapon in the fourth degree. After the close of evidence, the court denied a defense motion to dismiss the indictment, in which counsel asserted, "The People have not made out a prima facie case of intentional murder." On March 16, 2004, the jury returned a verdict of guilty on the count of second-degree murder under the depraved indifference theory. On April 15, trial counsel moved to set aside the verdict and reduce the conviction to manslaughter in the second degree (CPL 330.30). The trial court denied the motion, finding that by confining his motion for a trial order of dismissal to the charge of intentional murder, defendant had failed to preserve the issue of the sufficiency of the evidence with respect to the charge of depraved indifferencemurder. The court rendered judgment on May 11, 2004, sentencingdefendant to a term of imprisonment of 18 years to life.

This Court affirmed the judgment, agreeing that the sufficiency claim as to the charge of depraved indifference murder was unpreserved and stating that were we to review it, "we would find the verdict was based on legally sufficient evidence, based on the court's charge as given without exception" (40 A.D.3d 468, 836 N.Y.S.2d 174 [2007], lv. denied 9 N.Y.3d 881, 842 N.Y.S.2d 793, 874 N.E.2d 760 [2007] ). Likewise, we found that "the verdict was not against the weight of the evidence in light of the elements of the crime as charged to the jury without objection" ( id. at 468-469, 836 N.Y.S.2d 174).

Defendant then brought this CPL 440.10 motion claiming that his trial counsel failed to provide him with effective assistance. The moving papers assert that counsel was remiss in failing to argue that the depraved indifference second-degree murder count, although sustainable under an objective recklessness standard, was not supported by the requisite subjective depravity on defendant's part. Had counsel properly distinguished recklessness and depravity, defendant argued, the court would have dismissed the depraved indifference murder count or modified its instructions to the jury, with the result that "the jury might well have acquitted Mr. Sanchez on the depraved indifference count." In any event, defendant argued, a properly detailed objection "would have allowed the Appellate Division to conduct a plenary review of the weight of the evidence, without limitation to review of the 'elements of the crime as charged to the jury without objection' ... and Mr. Sanchez would have obtained a reversal of his conviction as against the weight of the evidence." The accompanying affidavit of Lynne Stewart stated that the failure to "make an argument regarding the depraved murder count ... was simply an oversight on my part. I did not have any strategic or tactical reason for not specifically addressing the depraved murder count," while conceding that she "was generally aware of the unsettled state of the law regarding depraved indifference murder and that some courts had found that depraved indifference murder was not adequately differentiated from reckless manslaughter."

Over the course of a few years, the crime of depraved indifference murder,² as it applies to a single victim, has evolved from a killing characterized by wanton recklessness, as an objective test determined from the factual circumstances of the crime ( see Feingold, 7 N.Y.3d at 291, 819 N.Y.S.2d 691, 852 N.E.2d 1163), to an unintentional killing carried out with a requisite mental state, or mens rea, that constitutes "the core criminal element, depraved indifference" ( id. at 295, 819 N.Y.S.2d 691, 852 N.E.2d 1163).

At the time of trial, the law with respect to depraved-mind murder was delineated by People v. Register, 60 N.Y.2d 270, 469 N.Y.S.2d 599, 457 N.E.2d 704 [1983], cert. denied 466 U.S. 953, 104 S.Ct. 2159, 80 L.Ed.2d 544 [1984] and People v. Oswaldo Sanchez, 98 N.Y.2d 373, 748 N.Y.S.2d 312, 777 N.E.2d 204 [2002], which looked to the "factual setting in which the risk creating conduct must occur," to determine whetherthe actions causing death reflected a depraved indifference to human life ( Register, 60 N.Y.2d at 276, 469 N.Y.S.2d 599, 457 N.E.2d 704). It was only a dissenting viewpoint that depravity was intended by the Legislature to be the mens rea of the offense ( id. at 281-282, 469 N.Y.S.2d 599, 457 N.E.2d 704 [Jasen, J., dissenting] ), or that the Register formulation failed to draw a substantive distinction between intentional and depraved indifference murder ( Sanchez, 98 N.Y.2d at 394, 748 N.Y.S.2d 312, 777 N.E.2d 204 [Rosenblatt, J., dissenting] ). "[ T]he majority," as Judge Rosenblatt put it, " leaves no conceivable circumstances under which a charge of intentional murder will not be amenable to a conviction for depraved indifference murder " ( id. [emphasis in original], cited with approval in Feingold, 7 N.Y.3d at 291, 819 N.Y.S.2d 691, 852 N.E.2d 1163).

The year before defendant was convicted, the Court of Appeals decided People v. Hafeez, 100 N.Y.2d 253, 762 N.Y.S.2d 572, 792 N.E.2d 1060 [2003], which defendant contends began to recognize Judge Rosenblatt's view of the scope of depraved indifference murder. In Hafeez, the defendant and his codefendant waited while a third person lured the victim from a bar. The victim was then pushed up against a wall by the defendant, and struggled with the codefendant, who administered the fatal stab wound. The Court of Appeals found that the trial evidence clearly showed a calculated and intentional murder, rather than a depraved indifference murder, and affirmed the Appellate Division's reversal of the defendant's conviction of depraved indifference murder. Judge Rosenblatt applauded the majority for "rejecting the incongruous notionthat an intentional killing can reflect depraved indifference" and emphasized depravity as a distinct element of the crime, not mere recklessness ( id. at 260, 762 N.Y.S.2d 572, 792 N.E.2d 1060 [Rosenblatt, J., concurring] ). However, to arrive at its decision, the Hafeez Court continued to adhere to Sanchez and to rely on the requirement it imposed on the People in Register to...