People v. Suarez

• Decision Date: 22 December 2005
• Citation: 844 N.E.2d 721,6 N.Y.3d 202
• Parties: The PEOPLE of the State of New York, Respondent, v. Santos SUAREZ, Appellant. The People of the State of New York, Respondent, v. Trisha McPherson, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 721

844 N.E.2d 721

6 N.Y.3d 202

The PEOPLE of the State of New York, Respondent, v. Santos SUAREZ, Appellant.

The People of the State of New York, Respondent, v. Trisha McPherson, Appellant.

Court of Appeals of New York.

December 22, 2005.

COPYRIGHT MATERIAL OMITTED

Center for Appellate Litigation, New York City (Mark W. Zeno and Robert S. Dean of counsel), for appellant in the first above-entitled action.

Robert T. Johnson, District Attorney, Bronx (Jonathan Zucker, Joseph N. Ferdenzi and Peter D. Coddington of counsel), for respondent in the first above-entitled action.

Warren S. Landau, New York City, and Lynn W.L. Fahey for appellant in the second above-entitled action.

Charles J. Hynes, District Attorney, Brooklyn (Sholom J. Twersky, Leonard Joblove and Anne C. Feigus of counsel), for respondent in the second above-entitled action.

OPINION OF THE COURT

PER CURIAM.

These two appeals call upon the Court, once again, to differentiate depraved indifference murder from other categories of homicide. We begin with the facts.

People v. Suarez. On February 22, 2000, in their Bronx apartment, defendant Santos Suarez stabbed his girlfriend, Jovanna Gonzalez, three times — once in the throat, once in the chest and once in the abdomen. Suarez fled without summoning assistance, and Gonzalez eventually bled to death.

When Suarez was arrested six days later in Rhode Island, he told police that he had slapped Gonzalez in the face during an argument, and that she had then lunged at him with a knife, scratching him in the chest. Suarez wrested the knife away and, "outraged" that Gonzalez had called for her son, lunged back at her. According to Suarez's account, when he pulled back, he saw that Gonzalez was bleeding from the neck. He claimed, however, that he could not remember what happened next. Suarez was indicted for intentional murder, depraved indifference murder, intentional manslaughter and criminal possession of a weapon in the fourth degree. At his trial, he testified that he never intended to kill Gonzalez. Charged on the defense of justification and the affirmative defense of extreme emotional disturbance, the jury acquitted Suarez of intentional murder but convicted him of depraved indifference murder. The Appellate Division affirmed defendant's conviction, holding that the evidence was legally sufficient to establish guilt of depraved indifference murder.

People v. McPherson. On February 12, 2000, defendant Trisha McPherson went to the Brooklyn home of Kirk Wright, her former boyfriend and the father of her child. According to McPherson, after she and Wright argued over child support, Wright pushed her. When Wright then raised his hand as if to hit her, McPherson unzipped her purse, pulled out a knife, opened the knife and swung it at Wright, stabbing him once in the chest. When she saw that Wright was bleeding, McPherson immediately called 911 and requested an ambulance. Before the ambulance arrived, McPherson left the scene. Wright was transported to a hospital, where he bled to death from the stab wound. At her nonjury trial for depraved indifference murder, first-degree manslaughter and fourth-degree weapon possession, McPherson testified that she had been a long-suffering victim of domestic violence at the hands of Wright, and that she was acting in self-defense when she killed him. The court, however, rejected her justification defense and found her guilty of depraved indifference murder. Again the Appellate Division affirmed defendant's conviction, holding that the evidence was legally sufficient to establish guilt of depraved indifference murder.

In each case — McPherson by a unanimous court, Suarez by a six-Judge majority — we conclude that there was no depraved indifference murder, and therefore reverse both convictions.

The Statutory Categories of Homicide

With the adoption of the revised Penal Law in 1965, the Legislature codified five basic categories of homicide, which have remained essentially unchanged since that time: intentional murder in the second degree (Penal Law § 125.25[1]),¹ depraved indifference murder in the second degree (Penal Law § 125.25[2]), intentional manslaughter in the first degree (Penal Law § 125.20[1]), reckless manslaughter in the second degree (Penal Law § 125.15[1]) and criminally negligent homicide (Penal Law § 125.10). Although the culpable acts in each case culminate in the same tragic result — the death of another — these crimes, each necessarily meant to proscribe different conduct, are distinguished by the level of blameworthiness attributable to the actor who commits them. Intentional murder and depraved indifference murder are equivalent in that both are classified at the highest grade and carry the same penalty; other categories of homicide, lesser in grade, are punished less severely. In so classifying the range of unlawful killings condemned by the criminal law, the Legislature has enacted a statutory system in which each category of homicide is defined uniquely and distinctly from every other, thus ensuring that a killer's punishment is commensurate with the degree of criminal culpability established by the Penal Law.

What precisely distinguishes depraved indifference murder from other homicides has of late generated significant discussion,² as the number of indictments for depraved indifference murder — often charged in conjunction with intentional murder — has increased dramatically. Whether because jurors conclude that anyone who would intentionally take a life is depraved, or because they mistakenly believe that depraved indifference murder is a lesser offense than intentional murder and are reluctant to convict of the "most serious" charge, the availability of a depraved indifference murder count has led juries to convict of that charge even though the evidence did not support it (see e.g. People v. Hafeez, 100 N.Y.2d 253, 762 N.Y.S.2d 572, 792 N.E.2d 1060 [2003]; People v. Gonzalez, 1 N.Y.3d 464, 775 N.Y.S.2d 224, 807 N.E.2d 273 [2004]; People v. Payne, 3 N.Y.3d 266, 786 N.Y.S.2d 116, 819 N.E.2d 634 [2004]; see also Policano v. Herbert, 430 F.3d 82 [2d Cir. 2005]).

The proliferation of the use of depraved indifference murder as a fallback theory under which to charge intentional killers reflects a fundamental misunderstanding of the depraved indifference murder statute. "[D]epraved indifference murder may not be properly charged in the overwhelming majority of homicides that are prosecuted in New York" (Payne, 3 N.Y.3d at 270, 786 N.Y.S.2d 116, 819 N.E.2d 634). Rather, because the statute requires "circumstances evincing a depraved indifference to human life" (Penal Law § 125.25[2]), depraved indifference murder properly applies only to a small, and finite, category of cases where the conduct is at least as morally reprehensible as intentional murder. The cases now before us, two additional examples of the misapplication of the depraved indifference murder statute, compel us — for now and for the future — to revisit what is unique and distinctive about that crime as defined by the Legislature. The purpose here is not to take anything away from juries (see concurring/dissenting op. at 227, 811 N.Y.S.2d at 286, 844 N.E.2d at 740) — a valued and essential element of our justice system — but rather to provide the guidance that will enable prosecutors, juries, trial courts and reviewing courts to function without risk of reversal.

Distinction from Intentional Murder

According to Penal Law § 125.25(2), a person commits depraved indifference murder when "[u]nder circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person."

That taking the life of another can itself, in a sense, be considered a "depraved" act does not, however, turn every killing into depraved indifference murder as proscribed by the Penal Law. We thus begin by once again underscoring that the "use of a weapon can never result in depraved indifference murder when ... there is a manifest intent to kill" (Payne, 3 N.Y.3d at 271, 786 N.Y.S.2d 116, 819 N.E.2d 634 [2004] [point-blank shooting insufficient to establish depraved indifference murder]). That is so because "[i]ndifference to the victim's life ... contrasts with the intent to take it" (id. at 270, 786 N.Y.S.2d 116, 819 N.E.2d 634). The People concede this proposition, but seek to distinguish Suarez from Payne, and from Gonzalez, 1 N.Y.3d 464, 775 N.Y.S.2d 224, 807 N.E.2d 273 [2004] [10 shots fired at close range], because in those cases the defendant used a gun, whereas here he used a knife. Thus, despite Payne's plain statement that "a one-on-one shooting or knifing (or similar killing) can almost never qualify as depraved indifference murder" (3 N.Y.3d at 272, 786 N.Y.S.2d 116, 819 N.E.2d 634 [emphasis added]), the People maintain that a jury could reasonably have concluded that Suarez's infliction of stab wounds to the throat, chest and abdomen of his victim reflected not an intent to kill but merely an intent to seriously injure her.

If the prosecution meant by this nothing more than that the evidence would have supported defendant's conviction for intentional murder — despite the jury's acquittal of that charge — as well as his conviction for intentional manslaughter in the first degree, we would agree. However, the People contend further that the evidence here also established depraved indifference murder, on the theory that Suarez's actions in stabbing the victim created a grave risk of her death — a risk that he consciously disregarded when he failed to seek medical assistance for the injuries he intentionally inflicted and instead left her there to die.

"That is not the law. If it were, every homicide, particularly intentional ones, would be converted into depraved indifference murder" (Payne, 3 N.Y.3d at 270, 786 N.Y.S.2d 116, 819 N.E.2d 634; see also People v....