People v. Heidgen

Cohen, J.,

dissents in part and concurs in part, and votes to modify the judgment, on the law and the facts, by reducing the conviction of murder in the second degree (two counts) to manslaughter in the second degree (two counts) and the conviction of assault in the first degree (three counts) to assault in the second degree (three counts), and vacating the sentences imposed on those counts and, as so modified, affirming the judgment and remitting the matter to the Supreme Court, Nassau County, for resentencing on those counts, with the following memorandum: One could hardly imagine a greater human tragedy resulting from the lethal mix of excessive alcohol consumption and driving than that which occurred on the Meadowbrook State Parkway in the early morning hours of July 2, 2005. Two innocent people, including a child, were killed and several seriously injured by the head-on collision caused by the defendant while he was in, by any standard, a highly intoxicated state. Lives were taken needlessly and the lives of many still living were shattered forever. It is beyond cavil that the evidence established that the defendant committed homicide. However, he did not commit murder, as defined within the framework of the Penal Law, and his prosecution on two counts of depraved indifference murder constituted an inappropriate expansion and wrongful application of our current homicide laws.

For the reasons more fully set forth below, I most respectfully *1028dissent and would modify the judgment, on the law and facts, by reducing the convictions of murder in the second degree (two counts) to manslaughter in the second degree (two counts), reducing the convictions of assault in the first degree (three counts) to assault in the second degree (three counts), and vacating the sentences on said convictions and, as so modified, affirming the judgment and remitting the matter to the Supreme Court, Nassau County, for resentencing on the reduced counts. In short, even when viewing the particular facts of this case most favorably to the prosecution (see People v Contes, 60 NY2d 620, 621 [1983]; see also Jackson v Virginia, 443 US 307, 319 [1979]; People v Kennedy, 47 NY2d 196, 203 [1979]), by applying the standards set forth in People v Valencia (14 NY3d 927 [2010] ), and, more recently in People v Prindle (16 NY3d 768 [2011] ), they are legally insufficient to support the convictions of depraved indifference murder in the second degree and assault in the first degree which lie at the very heart of this appeal. Furthermore, even if the evidence were legally sufficient, the convictions were certainly against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]). In all other respects, I agree with the majority’s conclusions.

On Friday, July 1, 2005, the then 24-year-old defendant met a friend at a bar in Manhattan, where from 4:30 p.m. to 7:30 p.m., he drank six 12-ounce bottles of beer while in his friend’s company. The friend left the bar at 7:30 p.m., but the defendant remained. The defendant eventually left the bar and traveled to the Nassau County home of a friend to attend a party. The defendant arrived at the party sometime between 11:00 p.m. and midnight. At this party, his friends observed the defendant drinking “a few beers” and two drinks consisting of beer with shots of whiskey and Irish cream liquor. The friends who saw him at this party described him as “intoxicated” and “buzzed.” The friends also testified that the defendant was in a “good mood,” that he had gotten the telephone number of the bartender at the bar they frequented, and that the friends and the defendant discussed plans for the upcoming weekend. The defendant remained at this party for a little more than IV2 hours and, although he had never done so before, left without saying goodbye to anyone.

At roughly 2:00 a.m. on the morning of July 2, 2005, the defendant, after driving his pickup truck the wrong way on the Meadowbrook State Parkway for approximately 21h miles, collided head-on with a limousine operated by Stanley Rabinowitz, which carried Jennifer Flynn, Neil Flynn, Katie Flynn, Grace Flynn, Christopher Tangney, and Denise Tangney. The majority *1029correctly notes that the defendant’s blood alcohol concentration (hereinafter BAG) at the time was .28%. That BAG is 3V2 times the level that section 1192 (2) of the Vehicle and Traffic Law defines as rendering a driver “intoxicated.” In fact, at approximately 2:40 a.m., the defendant was so intoxicated that his blood was drawn at a nearby hospital by Nurse Dorothy Busco, upon the request of New York State Trooper Daniel O’Hare, without the defendant’s consent, as he was incapable of providing consent. Indeed, expert testimony established that the defendant’s BAG would necessarily be the result of roughly 14 drinks in his system at the time of the accident, and suggested that he consumed at least 20 drinks from 4:30 p.m. until the time that his BAG was tested.

Both depraved indifference murder in the second degree (Penal Law § 125.25 [2]) and depraved indifference assault in the first degree (Penal Law § 120.10 [3]) require a mens rea of recklessness “[u]nder circumstances evincing a depraved indifference to human life.” Manslaughter in the second degree (Penal Law § 125.15 [1]) requires only a mens rea of recklessness. Although both manslaughter in the second degree and “depraved indifference” crimes require, at the very least, a culpable mental state of recklessness, the criminal conduct is elevated to depraved indifference if there exist, as described above, “circumstances evincing a depraved indifference to human life” (Penal Law § 125.25 [2]). When one acts with depraved indifference, one’s conduct is so wanton, so deficient in a moral sense, 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 (see People v Suarez, 6 NY3d 202, 211 [2005]). Indeed, “[D]epraved indifference is best understood as an utter disregard for the value of human life — a willingness to act not because one intends harm, but because one simply doesn’t care whether grievous harm results or not. Reflecting wickedness, evil or inhumanity, as manifested by brutal, heinous and despicable acts, depraved indifference is embodied in conduct that is ‘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 render the actor as culpable as one whose conscious objective is to kill” (id. at 214, quoting People v Russell, 91 NY2d 280, 287 [1998]; see also People v Feingold, 7 NY3d 288, 296 [2006]).

Furthermore, this mens rea and the relevant actus reus must both be present at a time close to one another, i.e., the People, in order to establish the culpable mental state of depraved indif*1030ference, must prove that the act of consuming alcohol was not “too temporally remote” from the operation of a motor vehicle (see People v Valencia, 14 NY3d 927, 934 [2010]).

Intoxication is not a defense to a criminal charge (Penal Law § 15.25). This Court has recognized that intoxication, like a mitigating defense, “merely reduces the gravity of the offense by negating an element” (People v Walton, 70 AD3d 871, 874 [2010], quoting People v Harris, 98 NY2d 452, 475 [2002]). In People v Walton, we recognized that an intoxication defense can mitigate depraved indifference murder to the lesser offense of reckless manslaughter (see People v Walton, 70 AD3d at 874, citing People v Harris, 98 NY2d at 475; People v Atkinson, 7 NY3d 765, 766 [2006]; People v Jean-Baptiste, 44 AD3d 792, 793 [2007], affd 11 NY3d 539 [2008]; People v McPherson, 35 AD3d 765, 766 [2006]). Furthermore, since the shift from the “objective circumstances” standard set forth in People v Register (60 NY2d 270 [1983], cert denied 466 US 953 [1984]) to the “subjective [culpable] state of mind” standard set forth in People v Feingold (7 NY3d 288 [2006]; People v Valencia, 14 NY3d at 931), the mens rea for depraved indifference murder is no longer merely recklessness. In concurring with the Court of Appeals’ decision in People v Valencia (14 NY3d 927 [2010]), Judge Graffeo recognized that “there remains [a] disagreement between courts as to whether the transformation of depraved indifference into a subjective state of mind precludes intoxication as a defense to that mens rea” (id. at 931), and that the Court of Appeals left open the issue of “[whether] the voluntary consumption of alcohol to the point of extreme inebriation preclude [s] the formation of a depravedly indifferent state of mind” (id. at 928). However, at the very least, we must all admit that without a mens rea of recklessness, the statutory prohibition contained in Penal Law § 15.05 (3) is no longer applicable.

“A person who fails to perceive a substantial and unjustifiable risk by reason of his [or her] intoxication acts recklessly” (People v Elysee, 12 NY3d 100, 105 [2009]). A person who acts with depraved indifference has no specific, conscious intent to cause a specific result, i.e., the death of another person or persons, but possesses the mens rea of being indifferent to, unconcerned with, and/or acting with complete disregard of the grave risks of death created by his or her conduct (see Penal Law § 125.25 [2]; People v Feingold, 7 NY3d at 294-296; People v Gonzalez, 1 NY3d 464, 467-468 [2004]). Furthermore, depravity requires the conscious appreciation of a grave risk. If death results from such wanton depraved act, the result rightfully calls for a sentence commensurate with intentional murder, a class A felony, including a life sentence of incarceration.

*1031In People v Valencia, the evidence presented included that the defendant: had a BAG three times the legal limit; drove at night in the wrong direction on a parkway at a high rate of speed; failed to stop or slow down despite attempts by other drivers to warn him of the dangers he was creating; and, after traveling in this manner for four miles, crashed head-on into one vehicle and then careened into another vehicle. There, the defendant alleged that he “ ‘didn’t know’ what had happened and ‘didn’t care’ ” (People v Valencia, 14 NY3d at 932). Yet, despite that statement, and the other evidence presented at trial, the Court of Appeals concluded that the defendant there was intoxicated and recklessly driving, but not acting with depraved indifference (see People v Valencia, 14 NY3d 927 [2010]). It is my opinion that the instant matter is virtually indistinguishable from People v Valencia.

In People v Prindle, decided by the Court of Appeals in February 2011, the defendant, fleeing apprehension for the theft of a $400 snowplow blade, led police on an erratic chase on a two-way road, running at least five red lights, repeatedly driving at high speeds, including in the lanes of oncoming traffic, before smashing into the rear driver’s side of the victim’s vehicle, killing her (People v Prindle, 16 NY3d 768 [2011]). Again, the Court of Appeals determined that the defendant did not act with depraved indifference.

As a matter of law, the evidence in this case was not legally sufficient to establish that the defendant exhibited depraved indifference and, accordingly, I would reduce the defendant’s convictions of depraved indifference murder in the second degree and assault in the first degree to the lesser-included offenses of manslaughter in the second degree and assault in the second degree, respectively, as the defendant is no more depravedly indifferent than were the defendants in People v Prindle or People v Valencia. The majority concludes that when viewing the evidence in the light most favorable to the prosecution, a reasonable jury could conclude that the defendant was aware that he was driving “the wrong way and deliberately chose to continue to proceed in the northbound direction, against traffic, without regard for the grave danger to himself and others traveling on the parkway that night,” and that given “the defendant’s statements to the police that he was in a ‘self-destructive’ mode . . . , it was reasonable for the jury to find that [he] possessed the requisite mens rea for depraved indifference at the time that the impact with the limousine occurred.” I disagree, and conclude that no rational or reasonable juror could infer that the defendant was suicidal, and acted with depraved *1032indifference to an appreciated grave risk, merely because he stated that he was in a “self-destructive” mode. Thus, the evidence was legally insufficient to support the essential elements of murder in the second degree or assault in the first degree. It was not established beyond a reasonable doubt that the defendant was aware of the danger of his conduct, aware of the grave and high probability of injury and death his conduct portended, and wholly indifferent to any such probability.

In any event, even if this evidence were legally sufficient, the verdict of guilt on the charges of murder in the second degree and assault in the first degree is unquestionably against the weight of the totality of the evidence presented at trial. While the majority notes that the defendant advised police that he was in a “self-destructive” mode, the evidence also established that the defendant wrote from prison to his friend and admitted that much of what he had told the police was untrue, including that he and his girlfriend had argued on the night of the party, that he had financial problems and was in a “self-destructive” mode. Indeed, he stated in this letter that he had used “a line from a movie” when he told the police that he had been in a “self-destructive mode.” He was seeking sympathy; he never stated he was suicidal, and a reasonable view of the evidence does not establish that he was on a suicide mission wherein he cared not whose life or how many lives he took along the way. It would be a vast and unreasonable leap to equate his statement that he was in a “self-destructive” mode, even if it were not subsequently revealed to be feigned, with a suicide mission, particularly in light of all the evidence presented. Indeed, in the same letter in which he admitted that he lied to the police, he expressed embarrassment as to the partying lifestyle he and his friends enjoyed and stated that his “self-destructive” comment was a ruse and an attempt to deflect the opinion that they were all “a bunch of hooligans and . . . should be punished as such.” I am unwilling to dismiss the defendant’s own repudiation of the alleged possible suicide mission. The evidence also included the defendant’s decidedly nonsuicidal demeanor and actions, such as his “good mood” and optimistic outlook, in that he was making plans with friends for the remainder of the holiday weekend less than an hour before the accident while “partying” with his friends. Still further, if the defendant were truly making a conscious effort to kill himself, without regard to whom he took with him, he certainly had ample opportunity to do so earlier on his 2V2 mile wrong-way drive on the Meadowbrook State Parkway, as he had encountered at least three vehicles prior to the limousine which carried his victims.

The majority also suggests that the testimony that “the de*1033fendant’s vehicle apparently tracked the headlights of the oncoming vehicles as they attempted to avoid the defendant’s vehicle” supports the jury’s verdict based on the theory that the defendant may have been suicidal. Again, I most respectfully disagree.

The People presented the testimony of Dr. William Closson, an expert in forensic toxicology. Dr. Closson explained that alcohol reduces the functioning of the brain, and that a .28% BAG would result in a reduced ability to perform multiple tasks simultaneously, resulting in tunnel vision such that the intoxicated person only sees those things directly in front of him or her. Accordingly, Dr. Closson also testified that oncoming headlights would be within the view of an intoxicated driver, and if those headlights suddenly veered to one side, the driver would be expected to react. Dr. Closson further testified that the reaction time of an intoxicated driver to stimuli, such as headlights, is greatly diminished.

I turn now to the testimony of the witnesses to the collision, including Reverend Steed Davidson, Denise Tangney, and Christopher Tangney. The testimony of these witnesses established that Reverend Davidson was lawfully operating his vehicle in the center southbound lane of the Meadowbrook State Parkway, when the limousine operated by Mr. Rabinowitz passed him on the left. Their testimony also established that the defendant was in the center southbound lane and then moved into the limousine’s lane just prior to the collision, but that Mr. Rabinowitz could not veer away from the defendant’s vehicle because Reverend Davidson’s vehicle was directly to his right. I reject the majority’s argument that he was “tracking” headlights because he was suicidal, and conclude that such an interpretation arises from a misapprehension of the expert’s testimony. Given the defendant’s probable tunnel vision, his lane change to the limousine’s lane was more likely a reaction to his observation of the headlights of Davidson’s vehicle. Such an action, in my opinion, militates against the conclusion that the defendant acted with depraved indifference. Furthermore, the defendant’s accident reconstruction expert opined, after applying a linear momentum analysis, that at the time of impact the defendant’s truck was moving at 33 miles per hour, rather than the 70-75 miles per hour estimated by the other drivers on the Meadowbrook State Parkway who had observed the defendant traveling over the relevant 21/2-mile stretch. Such reduction in speed also militates against any suggestion by the majority that the defendant was on a “suicide mission.”

There is no credible evidence, just speculation, that the de*1034fendant deliberately drove his vehicle the wrong way on the parkway in wanton disregard of human life and, thus, acted with depraved indifference towards human life (see People v France, 57 AD2d 432, 434 [1977]).

Accordingly, I cannot agree with the majority’s attempts to distinguish the Court of Appeals’ decisions in People v Prindle (16 NY3d 768 [2011]) and People v Valencia (14 NY3d 927 [2010]) from the facts before us. To distinguish People v Prindle would necessitate a finding that the evasion of police vehicles in the course of a high-speed chase while sober is a less culpable state of mind than driving on the wrong side of a highway at 70 miles per hour, at night, in a highly intoxicated state. Likewise, distinguishing People v Valencia necessitates finding, in the evidence presented to the jury, that the defendant was neither totally oblivious nor incapable of apprehending the gravity of his actions due to his intoxication. I do not subscribe to such conclusions.

While clearly not available at the time this defendant was charged, I take judicial notice that, two years after this incident — only months following the defendant’s conviction in 2007 — and, as indicated in the relevant bill jacket, at least partially in response to this matter, the Legislature defined the new crime of aggravated vehicular homicide (see L 2007, ch 345), a class B felony punishable by an indeterminate prison sentence ranging from SVs to 25 years (see Penal Law § 70.00 [2] [b]; [3] [b]; § 125.14). In enacting this new legislation, the Legislature, as justification, stressed the need to provide law enforcement officials and prosecutors with the “tools” necessary to charge and convict criminals who commit an offense involving driving while intoxicated that results in injury or death (Senate Introducer Mem in Support, Bill Jacket, L 2007, ch 345, at 8).

Viewing the evidence in a light most favorable to the prosecution, there is scant, if any, evidence from which a jury could reasonably infer that the defendant possessed the mens rea required to convict the defendant of a depraved indifference crime. Thus, I find no valid line of reasoning which supports the jury’s conclusion that the defendant possessed the mental culpability required to convict him of depraved indifference murder in the second degree or assault in the first degree. The defendant was too inebriated to form such a mens rea.

While the almost unspeakable horror caused by the defendant’s actions is enough to evoke strong notions that injustice and inequity would result if the convictions of murder in the second degree and assault in the first degree were reduced, I *1035respectfully suggest that we must not give any legal weight to the obviously tragic result of the collision when evaluating the defendant’s state of mind. We must strictly evaluate and construe the defendant’s actions in conjunction with his culpable mental state at the time of the incident when determining what crime was actually committed. After doing so, and weighing the evidence developed at trial, the convictions of the depraved indifference crimes cannot stand. The defendant was highly intoxicated and he was a operating a motor vehicle. The defendant recklessly committed crimes, including homicide, and his punishment should be commensurate with these crimes.

Accordingly, I would reduce the defendant’s conviction of the two counts of murder in the second degree to manslaughter in the second degree (see People v Valencia, 14 NY3d 927 [2010]) and, concomitantly, reduce his conviction of the three counts of assault in the first degree to three counts of assault in the second degree, vacate the sentences imposed thereon, and remit the matter to the Supreme Court, Nassau County, for resentencing on those counts.