People v. Suarez, 5014.

• Decision Date: 27 March 2007
• Docket Number: 5014.
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. SANTOS SUAREZ, Also Known as SANTO SUAREZ and as DOMINGO SUAREZ, Appellant.
• Court: New York Supreme Court — Appellate Division

40 A.D.3d 143

832 N.Y.S.2d 532

2007 NY Slip Op 02625

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. SANTOS SUAREZ, Also Known as SANTO SUAREZ and as DOMINGO SUAREZ, Appellant.

5014.

Appellate Division of the Supreme Court of the State of New York, First Department.

March 27, 2007.

Robert S. Dean, Center for Appellate Litigation, New York City (Mark W. Zeno of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (Jonathan Zucker and Joseph N. Ferdenzi of counsel), for respondent.

OPINION OF THE COURT

WILLIAMS, J.

The Court of Appeals remitted this matter to this Court (6 NY3d 202 [2005]) for consideration of the appropriate remedy after reversing defendant's conviction for depraved indifference murder (Penal Law § 125.25 [2]) on the grounds that it was error to submit that count to the jury since the evidence was legally insufficient to support it. Suarez is one of a recent series of Court of Appeals decisions (see e.g. People v Feingold, 7 NY3d 288 [2006]; People v Payne, 3 NY3d 266 [2004]; People v Gonzalez, 1 NY3d 464 [2004]; People v Hafeez, 100 NY2d 253 [2003]; see also Policano v Herbert, 430 F3d 82 [2d Cir 2005], questions certified to NY Ct App 453 F3d 75 [2d Cir 2006]) that seek to provide a clearer understanding of the criminal liability contemplated by the term "depraved indifference" and thereby to foster appropriate use of criminal charges based upon this theory. The question of remedy is a critical and potentially recurring issue, given the widespread use of the depraved indifference murder statute in recent years.

The relevant facts at this point are as follows. On the evening of February 22, 2000, defendant caused the death of Jovanna Gonzalez, the woman with whom he cohabited and who was the mother of his infant daughter, by stabbing her in the throat, chest and abdomen after a heated argument in their apartment. He was charged with two counts of murder in the second degree (intentional and depraved indifference), manslaughter in the first degree and criminal possession of a weapon in the fourth degree. His trial testimony raised the issues of whether the justification defense was implicated, whether extreme emotional disturbance was implicated and whether his intent was to cause death. The four counts submitted to the jury were murder in the second degree (intentional), manslaughter in the first degree (intentional but reduced because of extreme emotional disturbance), murder in the second degree (depraved indifference) and manslaughter in the first degree (with intent to cause serious injury). The jury was instructed pursuant to CPL article 300, inter alia, as to the proper order to consider the charges, and that a finding of guilty on a charge should end deliberations. Consequently, the jury acquitted defendant of intentional murder, convicted him of depraved indifference murder, and ceased deliberations without considering either count of manslaughter in the first degree.

On appeal, defendant argued that his conviction of depraved indifference murder was not proven by legally sufficient evidence since the conduct was proven to be intentional, not reckless, because the victim was the sole object of the assault and was stabbed three times. This Court affirmed the conviction (13 AD3d 320 [2004]).

Upon granting defendant leave to appeal, the Court of Appeals reversed. In its opinion, it discussed at length the theory and elements of depraved indifference murder and distinguished it from intentional (first-degree) and reckless (second-degree) manslaughter. It concluded that the circumstances are rare in which "[a] defendant may be convicted of depraved indifference murder when but a single person is endangered" (6 NY3d at 212), that (after providing three examples of such circumstances, none of which resembles the circumstances at issue) "[w]here comparable facts are not shown ... a jury is foreclosed, as a matter of law, from considering a depraved indifference murder charge whenever death is the result of a one-on-one confrontation" (id. at 213), and that depraved indifference murder should very rarely be submitted to a jury, either in tandem with intentional homicide or alone (id. at 215-216). Based on this reasoning, the Court further concluded that defendant's actions were intentional, and "in no way reflected a depraved indifference to [the victim's] fate" (id. at 216). However, the Court declined to address the question of remedy, since the parties had argued only the merits of the case, and remitted that issue to this Court "for full briefing and consideration and ... to exercise its corrective action powers under CPL 470.20" (id.).

The primary issue to be addressed here is whether, given defendant's acquittal of intentional murder and the Court of Appeals' reversal of defendant's conviction of depraved indifference murder, the Double Jeopardy Clauses of the Federal and State Constitutions, New York Criminal Procedure Law double jeopardy provisions and/or the doctrine of collateral estoppel bar defendant from now being tried for intentional manslaughter in the first degree, a charge included in the indictment, and submitted to but not considered by the jury.

The tenor of the Court of Appeals' decision in this case is that the trial court erroneously submitted the depraved indifference murder count to the jury, since it was not supported by legally sufficient evidence. CPL 300.40 provides:

"The court may submit to the jury only those counts of an indictment remaining therein at the time of its charge which are supported by legally sufficient trial evidence, and every count not so supported should be dismissed by a trial order of dismissal....

"5. If an indictment contains two inconsistent counts, the court must submit at least one thereof. If a verdict of guilty upon either would be supported by legally sufficient trial evidence, the court may submit both counts in the alternative...."

This trial error, in combination with New York's "acquit first" rule, which governs the order in which a jury must be charged to conduct its deliberations when lesser included offenses are submitted—i.e., the offenses must be considered in decreasing order of culpability, acquittal of all greater offenses before consideration of any lesser included offenses (People v Johnson, 87 NY2d 357 [1996]; People v Boettcher, 69 NY2d 174 [1987]; see also Preiser, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 300.50, at 251-252)—resulted in the jury's inability to reach either charge of manslaughter in the first degree, which is a lesser included charge of intentional murder in the second degree. Specifically, once the trial court erroneously determined that the depraved indifference murder count should be submitted to the jury along with the inconsistent intentional murder count, the court was required to do so in the alternative, that is, the jury had to be instructed that it could only convict defendant of one or the other, but not both. The jury had to be further instructed, in accordance with Johnson-Boettcher, that only if it voted to acquit on both murder counts could it consider the lesser included "manslaughter one" offense and that it should cease further deliberations upon reaching a guilty verdict upon any count (see People v Helliger, 96 NY2d 462 [2001]; Johnson, 87 NY2d at 359-361). The record shows that the trial court correctly gave these instructions, and the jury is presumed to have followed them (see People v Divine, 21 AD3d 767 [2005], affd 6 NY3d 790 [2006]), notwithstanding defendant's unsubstantiated allegations concerning the verdict sheet (see People v Boatwright, 297 AD2d 603 [2002], lv denied 99 NY2d 533 [2002]). However, the result was that the charges of manslaughter in the first degree, submitted to the jury, were never considered. Had the trial court not erroneously submitted depraved indifference murder, the jury would have been required to consider intentional manslaughter once it acquitted defendant of intentional murder.

The Double Jeopardy Clause (US Const 5th Amend) provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." It protects against three general governmental abuses: a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense (North Carolina v Pearce, 395 US 711, 717 [1969]). The Due Process Clause of the 14th Amendment extends these protections to the states (see Benton v Maryland, 395 US 784 [1969]). The New York Constitution (art I, § 6) affords similar protection. However, "[d]ecisions by [the US Supreme] Court have consistently recognized that the finality guaranteed by the Double Jeopardy Clause is not absolute, but instead must accommodate the societal interest in prosecuting and convicting those who violate the law" (Garrett v United States, 471 US 773, 796 [1985, O'Connor, J., concurring]). Moreover, "[p]ermitting retrial ... is not the sort of governmental oppression at which the Double Jeopardy Clause is aimed; rather, it serves the interest of the defendant by affording him an opportunity to `obtai[n] a fair readjudication of his guilt free from error'" (Lockhart v Nelson, 488 US 33, 42 [1988]).

CPL 40.30 provides:

"1. Except as otherwise provided in this section, a person `is prosecuted' for an offense, within the meaning of section 40.20, when he is charged therewith by an accusatory instrument filed in a court of this state or of any jurisdiction within the United States, and when the action either: ...

"(b) Proceeds to the trial stage and a jury has been impaneled and sworn or, in the case of a trial by the court without a jury, a witness is sworn....

"3. Despite the occurrence of proceedings specified in subdivision one, if such proceedings are subsequently nullified by a court order which restores the action to its pre-pleading status or...