On July 5, 2012, the Appellate Division, Third Department, definitively parted ways with the First Department by holding that submitting intentional and depraved indifference murder counts to the jury in the conjunctive constitutes reversible error.
In People v. Ross,1 the Third Department unanimously reversed the defendant’s conviction of manslaughter in the first degree and depraved indifference murder in the second degree on the basis that the trial judge erred by instructing the jury to consider counts of intentional and depraved indifference murder in the conjunctive. The decision follows on the heels of the co-defendant’s case, People v. Molina,2 in which the Third Department made the same finding, and leave to appeal was subsequently denied. The authors’ office prosecuted the Ross and Molina cases.
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