A divided Court of Appeals recently affirmed depraved indifference murder convictions in three cases involving automobile drivers who either were highly intoxicated or under the influence of drugs.1 I focus on two of the cases, People v. Heidgen and People v. McPherson. They illustrate the court’s ongoing struggle with the consequences of its controversial decision in 2006, People v. Feingold,2 to overrule its 1983 decision in People v. Register.3 The reader’s familiarity with Register, Feingold and the key decisions between Register and Feingold is assumed.
Mental State
In both Heidgen and McPherson the defendant was highly intoxicated, drove at night for miles on the wrong side of a highway at a speed well in excess of the limit, and collided head-on with another vehicle, killing the drivers of both vehicles and, in Heidgen, also killing a 7-year-old girl (and causing grievous injuries to members of her family). Chief Judge Jonathan Lippman, joined by Judges Victoria Graffeo, Eugene Pigott Jr., Jenny Rivera and Sheila Abdus-Salaam, wrote the opinion of the court; Judges Robert Smith and Susan Phillips Read dissented, with Read concurring in a separate opinion.
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