SUPPLEMENTAL DECISION AND ORDER Defendant moves this Court to re-argue his motion to inspect and dismiss the grand jury minutes, specifically with respect to count one of Kings County Indictment 8521-2017. The People oppose the defendant’s motion. Upon review of the parties’ initial written submissions, oral arguments held on the record, as well as counsels’ supplemental submissions, this Court finds as follows: The defendant’s motion to reargue is GRANTED, pursuant to CPL §255.20(3) and People v. Wisdom, 23 NY3d 970 (2014), in that the instant defense motion for re-argument is not time barred due to good cause shown, as the instant motion could not have been brought before this Court without the defense first receiving a copy of the minutes from the re-presentation of this case to the grand jury, by the People.Depraved indifference is a culpable mental state. That mental state “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.” People v. Feingold, 7 NY3d 288, 296 (2006).In the instant case the People presented evidence to a Kings County Grand Jury that on October 13, 2017, at approximately 4:00 AM, the defendant was operating a motor vehicle on the Brooklyn-Queens Expressway, in an intoxicated state. The People further allege that the defendant was driving at a high rate of speed, with his privilege to drive in this state suspended by the Commissioner of the Department of Motor Vehicles, and weaved in and out of traffic before colliding with a concrete barrier. As a result the defendant’s vehicle became engulfed in flames, the defendant fled the scene without summoning aid and the defendant’s passenger died as a result of the injuries she sustained.Depraved indifference jurisprudence requires a fact specific analysis. See People v. Heidgen, 22 NY3d 259, 267 (2013).In People v. Maldonado, 24 NY3d 48 (2014), the Court of Appeals held that because the defendant in that case made an effort to avoid colliding with other vehicles on the road, while driving at a high rate of speed, in a reckless manner to evade the police, “this conscious avoidance of risk is the antithesis of a complete disregard for the safety of others.” (id. at 54). The Court went on to opine that although the defendant in that case was “unquestionably reckless…he was not depravedly indifferent” (id.). Subsequently, the Second Department in People v. Williams, 150 AD3d 1273 (2d Dept., 2017) following the Maldonado analysis found that the charge of depraved indifference murder was satisfied by showing a lack of avoidance of risk (emphasis added), Williams at 1277, citing: Maldonado at 54, since the driver in Williams made no effort to avoid hitting other vehicles when fleeing from the police at high rate of speed and driving in a reckless manner.Here, the evidence before the grand jury established that the defendant exercised a conscious avoidance of risk by weaving in and out of traffic to avoid striking other vehicles prior to colliding with the concrete barrier. This is analogous to the case of Maldonado (supra) where the defendant exercised a conscious avoidance of risk when attempting to avoid collision with other vehicles by passing those vehicles and weaving in and out of traffic, during a high-speed police chase. However, the instant case is distinguished from the pre-Feingold and pre-Mancini cases of People v. Padula, 197 AD2d 747 (3d Dept., 1993) and People v. Gomez, 65 NY2d 9 (1985). In Padula, the defendant was found to acted in a manner consistent with a depraved indiffence to human life where the defendant drove, while intoxicated at an extremely high rate of speed through a populated intersection without slowing down, breaking or taking any evasive action. In Gomez the defendant drove at a high rate of speed through the streets of New York City, driving on both the populated streets and sidewalks, and refused to stop after striking a pedestrian. Although pre-Mancini, Padula and Gomez still illustrate the principal of failing to exhibit a conscious avoidance of risk, such as weaving in and out of traffic to avoid striking other vehicles on the road. As such, the core statutory requirement to establish depraved indifference has not been satisfied, even to a prima facia standard, in the instant case.Failure to summon aid is not a dispositive factor in determining whether a homicide constitutes depraved indifference murder. If such a fact was dispositive, then every homicide where the murderer does not summon help or wait for the arrival of aid, would be routinely and improperly converted into a case of depraved indifference. See People v. Bowman, 48 AD3d 178 (1st Dept., 2007), citing People v. Mancini, 7 NY3d 767 (2006). The Court of Appeals, in Mancini, held that by leaving a victim to die, the defendant did not automatically commit depraved indifference murder. Irrespective of what the actor does or does not do after inflicting the fatal injury, depraved indifference murder is not made out unless the core statutory requirement of depraved indifference is established (emphasis added), Mancini at 768, citing: People v. Suarez, 6 NY3d 202 at 210 (2005). In the case sub judice the facts presented to the grand jury clearly established morally reprehensible conduct on the part of the defendant after the crash. However, it failed to satisfy the core statutory requirement of depraved indifference.Based upon the foregoing, this Court finds that, pursuant to CPL §210.20(1)(b), count one of the instant indictment must be dismissed on the grounds that the evidence presented to the grand jury was not legally sufficient to support the charge of depraved indifference murder. Accordingly, for the reasons set forth above, the Defendant’s motion is hereby GRANTED and Count One of Kings County Indictment 8521-2017, charging Murder in the Second Degree (P.L. §125.25(2)), is hereby DISMISSED.This constitutes the decision, opinion and Order of the CourtDated: July 10, 2018Brooklyn, New York
