In 1992 Defendant was convicted after a bench trial of depraved indifference murder (Penal Law section 125.23[2]), and now, after having exhausted his direct appeal (which became final in in 1994), he collaterally attacks that conviction pursuant to Criminal Procedure Law 440.10[1][h], on the ground that the evidence supporting Mr. Gray’s conviction was insufficient and thus “the judgment was obtained in violation of a right of the defendant under the constitution of this state or of the United States ” (Criminal Procedure Law §440.10[1][h]).In doing so he wants this court to retroactively apply the revised definition of depraved indifference murder that was articulated and then clarified in a series of decisions that included People v. Suarez, 6 NY3d 202 (2005), People v. Feingold, 7 NY3d 288, 298 [2006], and Policano v. Herbert, 7 NY3d 588, 603 [2006].That revised definition holds that “depraved indifference to human life,” which is an element of murder in the second degree under Penal Law §125.25(2), “is a culpable mental state,” requiring a “finding that the defendant acted with 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” (People v. Suarez, 6 NY3d at 298 [dissent]). Depraved indifference to human life is a state of mind “which evinced a wicked and depraved mind regardless of human life” (People v. Martinez, 20 NY3d 971, 979 [2012] [internal citation omitted]). The revised definition served to “dispel the confusion between intentional and depraved indifference murder, and thus cut off the continuing improper expansion of depraved indifference murder. (Policano v. Herbert, 7 NY3d 588, 603 [2006]).Defendant argues, and this court agrees, that the additional purpose of the new interpretation of depraved indifference murder was to “dispel the confusion between depraved indifference murder and reckless manslaughter” (i.d.)In the instant case defendant was charged with killing Ronald Nelson in July 1991. The People alleged that defendant fired a gun in the direction of Mr. Nelson striking him in the head and killing him; and that defendant either intended to cause Nelson’s death or “acted recklessly under circumstances evincing a depraved indifference to human life.”Defendant waived jury trial. The court as fact-finder returned a verdict of guilt and made specific factual findings, including that “there was no proof that (defendant) intentionally pointed the gun and aimed it in any sort of military or marksmanship stance” and that “Mr. Gray intended to shoot the airspace around Mr. Nelson [but] hit something other than he may have wanted to.”The Court of Appeals, and at least the Third and Fourth Departments, have disallowed retroactive application of the revised definition of depraved indifference murder (see e.g. Policano v. Herbert, 7 NY3d 588, 603-604[2006]: “[d]efendants who commit vicious crimes but who may have been charged and convicted under the wrong section of the statute are not attractive candidates for collateral relief after their convictions have become final. In short, nonretroactivity poses no danger of a miscarriage of justice; People v. DiGuglielmo, 17 NY3d 771, 772-773[2011]: “[t]he standard enunciated in Feingold simply does not apply retroactively to [depraved indifference] cases on collateral review and [a] claim that such a result violated the federal Due Process Clause is without merit”; People ex rel. Elkady v. Conway, 41 AD3d 1176, 1177 [4th Dept 2007]: “In any event, pursuant to the express statement of the Court of Appeals in Policano v. Herbert [7 NY3d 588, 603], the case law upon which defendant relies does not apply retroactively”; People v. Strawbridge, 76 AD3d 115, 120, 905 NYS2d 687 [3d Dept 2010]: “Notwithstanding defendant’s efforts to formulate novel issues under the new depraved indifference standards, and to distinguish her collateral attack from others so as to obtain piecemeal retroactivity, retroactivity is precluded.”The revised formulation became effective on October 19, 2004 when the Court of Appeals decided People v. Payne (3 NY3d 266 [2004]) (see People v. Baptiste, 51 AD3d 184, 185 [3rd Dept 2008]). Since Mr. Gray’s conviction became final in 1994, the new definition cannot be applied retroactively,The defendant distinguishes his case on the ground that specific findings of fact were made by the trial judge that he had acted only recklessly, and that under the new definition, he did not commit any type of intentional murder, but rather, “committed reckless manslaughter, a crime punishable by a maximum 15 years in prison.” Thus, defendant argues, his case is different from Policano, in which the issue was whether the defendant or some other person had shot the victim.The Court agrees that the facts here distinguish this case from Policano. There, the defendant aimed and shot at the victim, who was standing in a bus shelter with other persons. The “risk” engendered by the defendant was the degree of harm to which he exposed the other persons waiting for the bus. As to the defendant, there was no doubt the defendant intended to kill him. However, the trial judge instructed the jury to deliberate and reach a decision on the issue of depraved indifference murder before reaching the intentional murder count, which it did, finding the defendant guilty.In deciding whether the revised definition of depraved indifference murder applies retroactively, the Court in Policano weighed the “three factors” set forth in People v. Pepper, 53 NY2d 213 (1981) “to determine whether a new precedent operates retroactively” (Policano v. Herbert, 7 NY3d at 603).The first factor is “the purpose to be served by the new standard” (i.d.) “Thus, where otherwise there could be a complete miscarriage of justice, current constitutional standards that go to the heart of a reliable determination of guilt or innocence have been substituted for those in effect at the time of trial” (i.d., quoting People v. Pepper, 53 NY2d at 221). In applying this first factor the Policano court held that “in the words of the concurring Judges in Suarez, the goal is to ‘make future homicide prosecutions more sustainable, increasing the likelihood that defendants who are proven beyond a reasonable doubt to have committed intentional murder will be properly held to account for that crime’” (i.d., quoting People v. Suarez, 6 NY3d at 217).The Court went on to quote further from Suarez: “In short, nonretroactivity poses no danger of a miscarriage of justice, because “[d]efendants who commit[] vicious crimes but who may have been charged and convicted under the wrong section of the statute are not attractive candidates for collateral relief after their convictions have become final” (Policano v. Herbert, 7 NY3d at 604, quoting Suarez at 217-218).Here, the trial found that defendant Gray did not commit intentional murder, only that he acted recklessly. Nor can it be said that committed what can be characterized as a “vicious” crime, having just shot his gun “into the airspace around Mr. Nelson” with no intention of hitting Mr. Nelson or anyone else. Thus the purpose to be achieved by non-retroactivity — making future true homicide investigations more “sustainable” (i.d.) – is not present. Gray is precisely an attractive candidate for collateral relief, not having acted intentionally or in any way that rises to the level of heinous or “vicious.”The second and third factors to be weighed are “the extent of the reliance by law enforcement authorities on the old standard; and the effect on the administration of justice of a retroactive application of the new standard.” (i.d.).In applying those factors, the Policano court first states that “For two decades prosecutors (have) relied on (the) objectively determined degree-of-risk formulation when making their charging decisions” (i.d., citing Sanchez, 98 NY2d at 387[Appendix]). In addition, the Court stated that “retroactive application would potentially flood the criminal justice system with CPL 440.10 motions to vacate convictions of culpable intentional murderers who were properly charged and convicted of depraved indifference murder under the law as it existed at the time of their convictions.”Again, neither factor is implicated here. Gray may have been properly charged and convicted of depraved indifference murder under the law as it existed in 1991, but he clearly and indisputably was not a “culpable intentional murderer.” No reasonable view of the evidence could support a finding that the defendant acted intentionally, unlike in People v. Sanchez (98 NY2d 373, 377 [2002]), in which the Court found that “a rational jury could harbor a reasonable doubt that the homicide of Range was intentional — i.e., that defendant’s ‘conscious objective [was] to cause [Range's death]‘ (Penal Law §15.05[1]). Thus, while law enforcement has indeed properly relied on the old standard, retroactive application would not unleash a “flood” of motions to vacate murder convictions, as it would only apply at most to those cases where no reasonable view of the evidence would support a finding of intentional murder. It could be argued that retroactive application would apply only to this exceptional case (and there cannot be many like it, if any) where specific findings have been made by the fact-finder that the defendant acted only recklessly, not intentionally. The defendant’s relief could be granted without having the case stand for a general proposition regarding retroactivity of the depraved indifference standard.However, this Court is mindful that it is bound to follow the decisions of the Appellate Division for the Fourth Department. The Fourth Department seems to interpret Policano differently, implying that its ruling is not case-specific but rather applies to all motions brought to vacate convictions for depraved indifference murder that occurred before 2004. “In any event, pursuant to the express statement of the Court of Appeals in Policano v. Herbert (7 NY3d 588, 603 [2006]), the case law upon which defendant relies does not apply retroactively” (People ex rel. Elkady v. Conway, 41 AD3d 1176, 1177 [4th Dept 2007]).This court then is bound to follow the express direction of the Fourth Department. “It is axiomatic that Supreme Court is bound to apply the law as promulgated by the Appellate Division within its particular Judicial Department (D’Alessandro v. Carro, 123 AD3d 1, 6, 992 NYS2d 520, 523 [1st Dept 2014], citing McKinney’s Cons. Laws of NY, Book 1, Statutes §72[b]).It is true that nowhere does the Court in Policano lay down a rule that retroactive application of the new definition of depraved indifference murder is disallowed in all circumstances. Defendant’s rationale for granting the relief requested — that the facts of his case distinguish it from Policano, serving to eviscerate the applicability of the factors outlined in People v. Pepper, and calling out for retroactive application so as to avoid a miscarriage of justice — is compelling.Nonetheless, in consideration of this Court’s mandatory deference to rulings of the Fourth Department, the motion is DENIED.This constitutes the DECISION and ORDER of the Court.Dated: May 3, 2019Rochester, New York
