People v. McPherson

89 A.D.3d 752, 932 N.Y.2d 85

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 1, 2011
• Status: Published

Opinions

At around midnight on October 18 to 19, 2007, the defendant went to the Island Rock nightclub in Hempstead with his girlfriend, a friend of his girlfriend, Delroy McCalla, and another individual, Roman Taylor. After drinking alcohol at the nightclub, the defendant and Taylor left and went to a nearby parking lot. McCalla testified that the defendant did not appear intoxicated at that time. According to McCalla, the defendant stated in the parking lot “I lost my shit,” presumably referring to drugs, and the defendant became upset. The defendant went into the trunk of his car and searched for something. The defendant then began arguing with his girlfriend. At approximately 3:15 a.m., several witnesses heard gunshots, but no one reported having seen the defendant fire a gun. The defendant then angrily ordered McCalla to leave with his girlfriend, which McCalla did, driving the defendant’s girlfriend home. The defendant and Taylor then entered the defendant’s vehicle, with the defendant driving. When police officers arrived at the parking lot only minutes later, at about 3:20 a.m., the defendant had left, and the officers recovered several 9-millimeter shell casings in the parking lot.

Thereafter, at approximately 3:30 a.m., the defendant’s vehicle was seen traveling west in the eastbound lanes of the Southern State Parkway at a speed of 70 to 75 miles per hour. According to numerous witnesses, the defendant’s vehicle traveled in the wrong direction from about exit 19 to exit 13, a distance of approximately five miles. A witness observed the defendant driving directly at him while changing lanes. That witness had to immediately pull his vehicle onto the shoulder to avoid a collision. This witness saw that the defendant continued driving the wrong way, and the witness observed the other vehicles on the parkway “[sjplit apart” in order to get away from the defendant. The witness testified that the defendant “was steadily going, not braking, nothing. He was just going. He was speeding.” Meanwhile, another witness, Police Sergeant Edward Schulze, was also driving in the proper direction in the left eastbound lane of the parkway. As Sergeant Schulze passed exit 14, he observed the defendant’s vehicle driving towards him “at a very, very high rate of speed,” which caused Sergeant Schulze to “violently” turn his steering wheel to the right to avoid a collision. The defendant’s car came within inches of Sergeant Schulze’s vehicle. According to Sergeant Schulze, the defendant “made absolutely no effort to get out of the way.”

Near exit 13, the defendant’s vehicle, without ever having slowed down, collided with the victim’s vehicle, killing the victim instantly and incinerating the victim’s vehicle. When emergency services and police arrived on the scene and attempted to remove the defendant from his damaged vehicle, the defendant was agitated and his breath emitted a strong odor of alcohol. Following the defendant’s arrest, a blood sample taken from him at 4:49 a.m., just over an hour after the accident, indicated that his blood alcohol content (hereinafter BAG) was 0.19%.

After the defendant was removed from his vehicle, the police began conducting an inventory search of the vehicle. The discovery of several 9-millimeter rounds in the trunk, however, transformed the search from inventory to investigatory, during which the police recovered a 9-millimeter semiautomatic pistol, what was later determined to be .395 grams of cocaine beneath the front passenger seat, and 41 rounds of 9-millimeter bullets contained in a partially loaded magazine and a box in the trunk. The gun recovered from the defendant’s vehicle matched the shell casings found in the parking lot near the nightclub.

The defendant’s contention that the evidence was legally insufficient to support his conviction of murder in the second degree and criminal possession of a weapon in the second degree is unpreserved for appellate review (see GPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 492 [2008]; People v Gray, 86 NY2d 10 [1995]). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish the defendant’s guilt of those crimes beyond a reasonable doubt (see People v Heidgen, 87 AD3d 1016 [2011]). A person is guilty of depraved indifference murder 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” (Penal Law § 125.25 [2]).

We disagree with our dissenting colleague’s view that there was no evidence that the defendant deliberately and purposefully proceeded the wrong way down the parkway, in recognition of the grave risk to human life, and with utter disregard for the consequences. Rather, viewing the evidence in the light most favorable to the prosecution, as we must (see People v Contes, 60 NY2d 620 [1983]), the testimony of the witnesses who observed the defendant speeding directly at them on the parkway, causing those witnesses to swerve in order to avoid a collision, demonstrates that the defendant’s mental state was one of depraved indifference to human life (see People v Feingold, 7 NY3d 288, 294 [2006]).

The defendant asserts that his BAG content and intoxication rendered him unable to form the mental state of depraved indifference to human life. To the contrary, the evidence demonstrated that the defendant helped Taylor leave the nightclub. In addition, McCalla testified that when the defendant left the nightclub, the defendant “looked okay to [him],” “didn’t look like intoxicated to me [sic],” and that the defendant “seemed like he could handle himself.” The evidence did not establish that the defendant was too intoxicated to form the culpable mental state necessary to prove depraved indifference (see People v Heidgen, 87 AD3d at 1022 [involving an intoxicated motorist traveling the wrong way on a parkway, stating that the evidence “did not establish that the defendant was intoxicated to a degree of total oblivion or mania” so as to preclude the defendant from forming the requisite mental state]; cf. People v Coon, 34 AD3d 869, 870 [2006] [after a nonjury trial, trial court found the defendant “suffered an atypical idiopathic reaction to the substance such that, at the time of the attack, he was experiencing cocaine intoxication delirium”]). Thus, the record supports a view of the evidence that the defendant was coherent and able to form the requisite mens rea prior to leaving the parking lot.

Perhaps instructive on the import of the defendant’s BAG content is People v Wells (53 AD3d 181 [2008]). In Wells, the intoxicated defendant drove through a red light, striking another vehicle and killing a passenger in that vehicle. The evidence adduced in that case further showed that, prior to the fatal collision, the defendant had struck a parked car and narrowly missed hitting another vehicle when he sped through a red traffic light. Following a nonjury trial, the defendant was convicted of, among other things, depraved indifference murder and assault in the first degree. On appeal, the Appellate Division, First Department, held that, applying the standards set forth in either People v Register (60 NY2d 270 [1983], cert denied 466 US 953 [1984]) or People v Feingold (7 NY3d 288 [2006]), the evidence was legally sufficient and the verdict was not against the weight of the evidence (see People v Wells, 53 AD3d 181 [2008]). Thereafter, the United States District Court for the Southern District of New York denied the defendant’s petition for a writ of habeas corpus (see Wells v Perez, 2011 WL 1453925, 2011 US Dist LEXIS 40712 [SD NY]). Two tests conducted approximately two hours after the incident revealed the defendant’s BAG to be 0.25% and 0.27%, respectively. Thus, here, as in Wells, a defendant’s statutory intoxication is not dispositive on the issue of whether a defendant was capable of forming the requisite mens rea.

Here, the evidence adduced at trial distinguishes this case from the cases relied upon by the defendant, including People v Prindle (16 NY3d 768 [2011]). In Prindle, the defendant, who was concerned about being arrested for the theft of a snowplow blade, led police on a 2V2 to 4 mile chase while driving in and out of an oncoming lane of traffic. Ultimately, the defendant drove his van into another vehicle, killing a passenger. Also, in Prindle there was evidence that the defendant was attempting to evade the other cars inasmuch as he crossed over the double solid line and back numerous times. The Court of Appeals in Prindle determined that the evidence was legally insufficient to establish depraved indifference murder. Here, by contrast, the record does not suggest that the subject accident was the result of the defendant’s attempt to flee from the police, and there was factual proof that the defendant had several opportunities to cease his procession towards oncoming traffic.

Similarly, People v Valencia (14 NY3d 927 [2010]), which also involved an intoxicated motorist traveling the wrong way on a parkway, can be distinguished. In Valencia, following a bench trial, the finder of fact made a specific finding that the defendant’s intoxication rendered him “oblivious” to his travel upon a highway prior to the accident to form the culpable mental state of depraved indifference to human life at the time he collided with the complainants’ vehicles. Thus, the trial court determined that the evidence did not support his conviction of assault in the first degree. That factual finding was not disturbed by this Court (58 AD3d 879 [2009]), and the Court of Appeals was without power to review it. Although the decision by the Court of Appeals in Valencia does not so indicate, the only legal issue addressed in the briefs and argued before the Court of Appeals was whether the defendant’s intoxication was too temporally remote from his driving to permit his conviction of depraved indifference assault (14 NY3d 927). Here, the defendant’s conviction of depraved indifference murder was not based upon his decision to begin drinking with knowledge that he planned to drive later in the evening. Instead, the conviction in the instant case was established by the eyewitness testimony which, viewed in the light most favorable to the People, was sufficient to find that the defendant possessed an “ ‘utter disregard for the value of human life’ ” so as to render him as culpable as a person who intended the consequences of his actions (People v Feingold, 7 NY3d at 298 [dissent of Ciparick, J.], quoting People v Suarez, 6 NY3d 202, 214 [2005]). Moreover, Valencia is factually distinguishable in that there was no evidence in that case that the defendant drove past various other drivers who had to swerve to avoid hitting him prior to the fatal collision.

We do not believe that Prindle and Valencia stand for the proposition that a defendant who is per se intoxicated (see Vehicle and Traffic Law § 1192), and drives into oncoming traffic resulting in a fatality, can never be found guilty of depraved indifference murder or assault because such a defendant is incapable of forming the requisite mens rea of depraved indifference to human life. Rather than supporting the defendant’s position, the above-cited cases merely illustrate that, in situations where a defendant is alleged to have acted with depraved indifference to human life while operating a motor vehicle, the nature of the evidence presented is crucial. We agree that when presented with a proper factual predicate, a defendant can be found not guilty of depraved indifference murder as a matter of law. However, we part with the dissent in that we disagree that the facts in this case mandate an acquittal as a matter of law. The facts as articulated above support the defendant’s conviction of murder in the second degree. Therefore, these cases are all fact determinative. We also note that the state of the law in this area has yet to be fully developed.

Our dissenting colleague correctly notes that, in 2007, the Legislature created the new crime of aggravated vehicular homicide, a class B felony (see Penal Law § 125.14; L 2007, ch 345). We agree that the new crime — which was not in effect at the time of the incident sub judice — was intended to address drunk drivers who kill, but act with a mental state that does not rise to the level of depraved indifference to human life. We also acknowledge that it is unusual for one to be guilty of depraved indifference murder when driving while intoxicated because of the decisions of the Court of Appeals, previously cited, that limited its application. We also agree with our dissenting colleague that the new crime was not needed to rectify a purported legal impossibility of a drunk driver being convicted of depraved indifference murder. A review of the legislative bill jacket supports this view (see Bill Jacket, L 2007, ch 345).

The dissent posits that in order to convict the defendant of depraved indifference murder, the jury would have had to have found that the defendant was suicidal. This assertion is flawed because it is not necessary for the defendant to have intended to kill himself when he drove the wrong way down the parkway. Indeed, to find the defendant guilty of depraved indifference murder, a rational trier of fact would not need to find that the defendant had a specific, conscious intent to cause a certain result (see People v Gonzalez, 1 NY3d 464, 467 [2004] [“Depraved indifference murder differs from intentional murder in that it results not from a specific, conscious intent to cause death, but from an indifference to or disregard of the risks attending defendant’s conduct”]).

Under the facts presented here, the defendant’s action of driving his vehicle towards oncoming traffic on the parkway for approximately five miles constituted reckless conduct which carried with it a grave risk of death and evinced a depraved state of mind. The negation of this intent, by extreme intoxication, is not supported by the record. For example, the defendant helped Taylor into the car, he searched for his missing drugs, and McCalla testified that the defendant did not appear intoxicated. Thus, we cannot conclude that the evidence of the defendant’s guilt of murder in the second degree was legally insufficient to support that conviction. Moreover, upon our independent review pursuant to CPL 470.15 (5), we are satisfied that the verdict of guilt as to depraved indifference murder was not against the weight of the evidence (see People v Danielson, 9 NY3d 342 [2007]).

Likewise, we find that the evidence was legally sufficient to establish the defendant’s guilt of criminal possession of a weapon in the second degree, and that the verdict of guilt as to that crime was not against the weight of evidence.

Contrary to the defendant’s contention, the hearing court properly denied that branch of his omnibus motion which was to suppress the physical evidence seized from his vehicle. The evidence adduced at the suppression hearing demonstrated that the search of the defendant’s vehicle was authorized as a warrantless search falling within the automobile and emergency exceptions to the warrant requirement (see Arizona v Gant, 556 US 332 [2009]; People v Molnar, 98 NY2d 328, 332 [2002]; People v Blasich, 73 NY2d 673, 678 [1989]; People v Belton, 55 NY2d 49, 53-55 [1982]; People v Mitchell, 39 NY2d 173 [1976], cert denied 426 US 953 [1976]).

Further, the defendant was not deprived of the effective assistance of counsel, as defense counsel provided meaningful representation (see People v Benevento, 91 NY2d 708, 712 [1998]; People v Baldi, 54 NY2d 137, 147 [1981]).

The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80, 85-86 [1982]). Florio, J.E, Dickerson and Leventhal, JJ., concur.

Belen, J., dissents and votes to modify the judgment, on the law, on the facts, and as a matter of discretion in the interest of justice, by reducing the conviction of murder in the second degree to manslaughter in the second degree, and vacating the sentence imposed on that count and, as so modified, to affirm the judgment and remit the matter to the County Court, Nassau County, for resentencing on that count with the following memorandum.